Saludares y Anolar v. People

SECOND DIVISION

[G.R. No. 248031. July 12, 2021.]

ROCKY SALUDARES y ANOLAR, petitioner,vs. PEOPLE OF THE PHILIPPINES, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a Resolution dated 12 July 2021which reads as follows:

"G.R. No. 248031 (Rocky Saludares y Anolar v. People of the Philippines) — The Court resolves to:

1. NOTE the manifestation dated 5 May 2021 of the Office of the Solicitor General (OSG), stating that the motion for extension to file comment on the petition was filed electronically due to the temporary physical closure of its office, and submitting the attached hard copy thereof; and

2. GRANT the motion of the OSG for extension of thirty (30) days from 3 May 2021 within which to file comment on the petition for review on certiorari, and NOTE aforesaid comment dated 31 May 2021 in compliance with the Resolution dated 1 March 2021.

We partly grant the petition.

Petitioner is guilty of Illegal Possession of

In this petition for review on certiorari, Rocky Saludares y Anolar seeks to reverse and set aside the verdict of conviction for violation of Section 11 of Republic Act No. (RA) 9165 as amended by RA 10640 1 (Illegal Possession of Dangerous Drugs), Section 28 (a) of RA 10591 2 (Illegal Possession of Firearm), and Section 261 (q) of the Omnibus Election Code 3 in relation to Commission on Elections (COMELEC) Resolution No. 10015 (COMELEC gun ban). 4 He essentially faults the appellate court for affirming the findings of the trial court that his warrantless arrest on February 4, 2016 was lawful despite the absence of any valid ground therefor. As his arrest was invalid, so too must the search incidental to his arrest be deemed infirm. Consequently, the drug item allegedly seized from him is inadmissible in evidence. At any rate, the failure of the arresting officers to comply with chain of custody rule was fatal to the case of the prosecution.

Notably, insofar as the charges for Illegal Possession of Firearm and violation of the COMELEC Gun Ban are concerned, petitioner does not question the presence of the elements of these crimes, only the validity of his arrest therefor. To be sure, petitioner even stipulated with the prosecution that the caliber .38 firearm with serial number 55717 and marked 'LG-RS' submitted before the trial court was the same firearm that was seized from his possession when he got arrested. 5 Petitioner also admitted during the pre-trial that he was not licensed to carry firearms, nor was he a holder of a certificate of gun ban exemption from the COMELEC. 6 It cannot also be denied that the arrest was done outside his residence, in a public place, on carnival grounds, and during the election period on February 4, 2016. Yet, petitioner remains adamant that his arrest was not lawful.

But as we have invariably ruled, objections against the lawfulness of an arrest which are not raised through a motion to quash before the accused enters his or her plea are deemed waived. For the voluntary submission of an accused to the jurisdiction of the court and his or her active participation during the trial cures any defect or irregularity which may have attended the arrest. 7

Here, petitioner questioned the validity of his arrest only on appeal before the Court of Appeals. By then, he was already estopped from raising any objection against the legality of his warrantless arrest.

Petitioner is Acquitted of Illegal

The Court, nevertheless, agrees with petitioner that the arresting officers failed to comply with the witness requirement under Section 21, Article II of RA 9165 as amended by RA 10640 thus:

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

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

xxx xxx xxx

Meanwhile, the Implementing Rules and Regulations ordain:

A. Marking, Inventory and Photograph; Chain of Custody Implementing Paragraph "a" of the IRR.

A.1. The apprehending or seizing officer having initial custody and control of the seized or confiscated dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, mark, inventory and photograph the same in the following manner:

xxx xxx xxx

A.1.5. The physical inventory and photograph of the seized/confiscated items shall be done in the presence of the suspect or his representative or counsel, with elected public official and a representative of the National Prosecution Service (NPS) or the media, who shall be required to sign the copies of the inventory of the seized or confiscated items and be given copy thereof. In case of their refusal to sign, it shall be stated "refused to sign" above their names in the certificate of inventory of the apprehending or seizing officer.

xxx xxx xxx

A.1.10. Any justification or explanation in cases of noncompliance with the requirements of Section 21(1) of RA No. 9165, as amended, shall be clearly stated in the sworn statements/affidavits of the apprehending/seizing officers, as well as the steps taken to preserve the integrity and evidentiary value of the seized/confiscated items. Certification or record of coordination for operating units other than the PDEA pursuant to Section 86 (a) and (b), Article IX of the IRR of RA No. 9165 shall be presented. (emphases added)

Verily, RA 9165 as amended by RA 10640 only requires two (2) witnesses to be present during the physical inventory and photographing of the seized items: (1) an elected public official; and (2) either a representative from the National Prosecution Service or the media. 8 Non-compliance with the requirement may be excused if the arresting officers offered an explanation therefor and provided that the integrity and evidentiary value of the seized item was preserved.

Here, only the arresting officers and petitioner were present at the police station during the inventory; none of the required insulating witnesses were in attendance. Though the arresting officers sufficiently explained the absence of an elected official, i.e., none of the barangay officials answered their calls, 9 no justification was given for the absence of a representative from either the media or the National Prosecution Service.

The absence of an explanation was even noted by the trial court. 10 Yet the trial court excused the arresting officers' non-compliance with the requirement since 'at that late hour in the province, it is almost inconceivable that representatives of the media or of the National Prosecution Service could still be summoned to witness an inventory of seized items.' 11 The Court of Appeals concurred in this finding of the trial court.

We do not agree.

In People v. Lim, 12 the Court held that non-compliance with the witness requirement may only be excused upon showing that the arresting officers exerted earnest efforts in contacting the representatives enumerated under the law. Mere statements of unavailability, absent actual serious attempts to contact the required witnesses are unacceptable as justified grounds for noncompliance.

Here, there was no showing at all that the arresting officers made an attempt to contact representatives from either the media or the National Prosecution Service. The trial court and the Court of Appeals merely assumed that representatives of the media or of the National Prosecution Service would be unavailable at that time. Surely, this falls short of the required justification for non-compliance with Section 21, Article II of RA 9165 as amended. Petitioner, therefore, is entitled to a verdict of acquittal in Criminal Case No. 17121-14.

Penalties

a. Criminal Case No. 17122-14

Section 28 (a) of RA 10591 punishes any person who shall unlawfully acquire or possess a small firearm with prision mayor in its medium period. The penalty of one (1) degree higher, however, will be imposed if said firearm is loaded with ammunition. 13 It bears stress, however, that qualifying circumstances must be proved with the same quantum of evidence as the crime itself, that is, beyond reasonable doubt. 14

Here, the Information alleged that the .38 firearm with serial number 55717 was loaded with five (5) live ammunitions. But the courts below did not consider this qualifying circumstance in determining the proper imposable penalty. And rightfully so. For the prosecution never adduced evidence to prove that the gun seized from petitioner was actually loaded with live ammunitions. To recall, although the prosecution and the defense stipulated that the gun seized from petitioner was the same gun offered in evidence during the trial, there was no mention at all about the live ammunitions supposedly loaded therein.

Under the Indeterminate Sentence Law, 15 the minimum indeterminate penalty should be within the range of the penalty next lower to that prescribed, i.e., prision mayor in its minimum period or six (6) years and one (1) day to eight (8) years. Meanwhile, the maximum penalty shall be taken from the middle range of prision mayor in its medium period 16 in the absence of mitigating or aggravating circumstances. Thus, the trial court did not err in sentencing petitioner to six (6) years and one (1) day of prision mayor as minimum, to nine (9) years of prision mayor as maximum.

b. Criminal Case No. 17123-14

Under Section 264 17 of the Omnibus Election Code, any person guilty of the COMELEC Gun Ban shall be punished with imprisonment of one (1) year to six (6) years. Applying the Indeterminate Sentence Law, 18 the maximum term of the indeterminate penalty shall not exceed the maximum fixed by special laws and the minimum shall not be less than the minimum term prescribed by the same laws. Thus, the courts below correctly sentenced petitioner to two (2) to three (3) years.

ACCORDINGLY, the petition is PARTLY GRANTED. The Decision dated November 13, 2018 and Resolution dated June 17, 2019 of the Court of Appeals in CA-G.R. CR No. 40497 are AFFIRMED with MODIFICATION.

(1) In Crim. Case No. 17121-14, petitioner ROCKY SALUDARES y Anolar is ACQUITTED of Illegal Possession of Dangerous Drugs under Section 11 of Republic Act No. 9165 as amended by Republic Act No. 10640;

(2) In Crim. Case No. 17122-14, petitioner ROCKY SALUDARES y Anolar is found GUILTY of Illegal Possession of Firearm under Section 28 (a) of Republic Act No. 10591 and is sentenced to six (6) years and one (1) day of prision mayor as minimum to nine (9) years of prision mayor as maximum; and

(3) In Crim. Case No. 17123-14, petitioner ROCKY SALUDARES y Anolar is found GUILTY of violating the COMELEC Gun Ban under Section 261 (q) of the Omnibus Election Code in relation to Commission on Elections Resolution No. 10015 and sentenced to two (2) years as minimum to three (3) years as maximum. He is further DISQUALIFIED from holding public office and exercising his right of suffrage.

SO ORDERED." (Lopez, J., J., designated additional member per Special Order No. 2822 dated April 7, 2021.)

By authority of the Court:

TERESITA AQUINO TUAZONDivision Clerk of Court

By:

(SGD.) MA. CONSOLACION GAMINDE-CRUZADADeputy Division Clerk of Court

 

Footnotes

1.Section 11. Possession of Dangerous Drugs. — x x x

xxx xxx xxx

x x x the penalties shall be graduated as follows:

(1) Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantity of methamphetamine hydrochloride or "shabu" is ten (10) grams or more but less than fifty (50) grams;

xxx xxx xxx

2. SEC. 28. Unlawful Acquisition, or Possession of Firearms and Ammunition. — The unlawful acquisition, possession of firearms and ammunition shall be penalized as follows:

(a) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess a small arm;

xxx xxx xxx

(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;

3. Batas Pambansa Bilang 881, approved December 3, 1985.

xxx xxx xxx

4. Section 261. Prohibited Acts. — The following shall be guilty of an election offense:

xxx xxx xxx

(q) Carrying firearms outside residence or place of business. — Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof.

xxx xxx xxx

Section 264. Penalties. — Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served. Any political party found guilty shall be sentenced to pay a fine of not less than ten thousand pesos, which shall be imposed upon such party after criminal action has been instituted in which their corresponding officials have been found guilty.

5.Rollo, p. 174.

6.Id. at 170.

7.Veridiano v. People, 810 Phil. 642, 654 (2017).

8.People v. Lim, G.R. No. 231989, September 4, 2018.

9.Rollo, p. 172.

10.Id. at 98.

11.Id.

12.People v. Lim, supra note 7.

13. SEC. 28. Unlawful Acquisition, or Possession of Firearms and Ammunition. — The unlawful acquisition, possession of firearms and ammunition shall be penalized as follows:

(a) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess a small arm;

xxx xxx xxx

(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;

14.People v. Gayon, G.R. No. 230221, April 10, 2019.

15. Section 1, Act No. 4103.

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; x x x

16. Eight (8) years, eight (8) months and one (1) day to nine (9) years and four (4) months.

17.Section 264.Penalties. — Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation.

xxx xxx xxx

18. Section 1, Act No. 4103.

Section 1. x x x if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.