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People vs Nazareno: PDF

People vs Tabarnero

Facts:

Gary went to the house of the deceased Ernesto Canatoy (Ernesto), where theformer used to reside as the live-in partner of Mary Jane Acibar (Mary Jane),Ernesto’s stepdaughter. Gary and Ernesto had a confrontation during which thelatter was stabbed nine times, causing his death. Gary and his father, Alberto,were charged with the crime of Murder. Gary surrendered to a barangay tanod.

Alberto was later on arrested. During pre-trial conference, Gary admitted havingkilled Ernesto, but claimed that it was an act of self-defense (hence, reversetrial).

Issue:

1.) Should the justifying circumstance of self-defense be considered on the partof Gary? 2.) Is Gary entitled to the mitigating circumstance of voluntarysurrender?

Held:

NO. Gary’s contention that the

unlawful aggression on the part of Alberto was when the latter struck him of alead pipe, his pleas outside their house could not be considered as sufficientprovocation, and that his defense was reasonable, are unmeritorious. Histestimony is insufficient and self-serving. The alleged initial attack on him whenhe was about to leave seemed to be all-convenient considering that no onewitnessed the start of the fight. The nine stab wounds inflicted on Ernestoindicate an intent to kill and not merely to defend himself. He further argues thateven if he is not qualified to the justifying circumstance of self-defense, he is stillentitled to the mitigating circumstance of incomplete self-defense under Article13(1). The court however, ruled that Gary failed to prove the presence ofunlawful aggression which is an indispensable element of self-defense whethercomplete or incomplete. Hence, he is not entitled to the mitigating circumstance.2.) NO. In order that the mitigating circumstance of voluntary surrender may becredited to the accused, the following should be present:

(a) the offender has not actually been arrested; (b) the offender surrenderedhimself to a person in authority; and (c) the surrender must be voluntary. Asurrender, to be voluntary, must be spontaneous,

i.e.,

there must be an intent to submit oneself to authorities, either because heacknowledges his guilt or because he wishes to save them the trouble and

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expenses in capturing him. In the case at bar, appellant surrendered to theauthorities after more than one year (almost one year and six months from theOctober 23, 1999 incident, and almost one year and one month from theissuance of the warrant of arrest against him on March 27, 2000 ) had lapsedsince the incident and in order to disclaim responsibility for the killing of the

victim. This neither shows repentance nor acknowledgment of the crime norintention to save the government the trouble and expense necessarily incurred inhis search and capture. Besides, at the time of his surrender, there was apending warrant of arrest against him. Hence, he should not be credited with themitigating circumstance of voluntary surrender Others: *Alberto is a principal bydirect participation having actually participated in stabbing Ernesto.

Ernesto’s

dying declaration that it was the father and son, Gary and Alberto who stabbedhim, proved to be very persuasive and entitled to the highest credence. *Killing ofErnesto is qualified by treachery because he was held by two other persons

while he was being stabbed, which rendered him defenseless and unable toeffectively repel or evade the assault.

People v. Bokingco and ColG.R. No. 187536, August 10, 2011

FACTS: On February 29, 2000, at around 1:00 a.m., Bokingco was seen by Vitalicio, thevictim’s brother-in-law, hitting something on the floor inside Apartment No. 3.Upon seeing Vitalicio, Bokingco pushed open the screen door and attacked himwith a hammer in his hand. A struggle ensued and Vitalicio was hit several times.Vitalicio bit Bokingco’s neck and managed to push him away. Bokingco tried tochase Vitalicio but was eventually subdued by a co-worker. Vitalicio saw Pasion’sbody lying flat on the kitchen floor.

Elsa was in the master’s bedroom on the second floor of the house when sheheard banging sounds and her husband’s moans. She immediately got off thebed and went down. Before reaching the kitchen, Col blocked her way. Elsaasked him why he was inside their house but Col suddenly ran towards her,sprayed tear gas on her eyes and poked a sharp object under her chin. Col theninstructed her to open the vault of the pawnshop, which formed part of theirhouse, but Elsa informed him that she does not know the combination lock. Elsasaw Bokingco open the screen door and heard him tell Col: "Tara, patay na siya."Col immediately let her go and ran away with Bokingco. Elsa proceeded to

Apartment No. 3. Thereat, she saw her husband lying on the floor, bathed in hisown blood.

Issue: Did the CA err in appreciating the aggravating circumstance of treachery?

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Held: Treachery cannot be appreciated to qualify the crime to murder in the absence ofany proof of the manner in which the aggression was commenced. For treacheryto be appreciated, the prosecution must prove that at the time of the attack, the

victim was not in a position to defend himself, and that the offender consciouslyadopted the particular means, method or form of attack employed by him.Nobody witnessed the commencement and the manner of the attack. While thewitness Vitalicio managed to see Bokingco hitting something on the floor, hefailed to see the victim at that time.

People vs Vilbar

On appeal is the Decision [1] dated February 14, 2008 of the Court of Appeals inCA-G.R. CR.-H.C. No. 00270 which modified the Judgment [2] promulgated on

August 6, 2001 by the Regional Trial Court (RTC), Branch 35, of Ormoc City, inCriminal Case No. 5876-0. The RTC originally found accused-appellant VicenteVilbar guilty beyond reasonable doubt of the crime of murder for treacherouslystabbing with a knife the deceased Guilbert Patricio (Guilbert), but the Court of

Appeals subsequently held accused-appellant liable only for the lesser crime ofhomicide.

The Information charging accused-appellant with the crime of murderreads:

That on or about the 5 th day of May 2000, at around 7:00o’clock in the evening, at the public market, this city, and within the

jurisdiction of this Honorable Court, the above-named accused,VICENTE VILBAR alias Dikit, with treachery, evident premeditationand intent to kill, did then and there willfully, unlawfully andfeloniously stab, hit and wound the victim herein GUILBERTPATRICIO, without giving the latter sufficient time to defendhimself, thereby inflicting upon said Guilbert Patricio mortal woundwhich caused his death. Post Mortem Examination Report ishereto attached.

In violation of Article 248, Revised Penal Code, as amendedby R.A. 7659, Ormoc City, June 13, 2000. [3]

When accused-appellant was arraigned on July 31, 2000, he pleaded notguilty to the criminal charge against him. [4]

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During the pre-trial conference, the parties already admitted that Guilbert

was stabbed at the Public Market of Ormoc City on May 5, 2000 at around seveno’clock in the evening, and that immediately before the incident, accused-

appellant was at the same place having a drinking spree with a certain ArcadioDanieles, Jr. and two other companions. However, accused-appellant deniedthat it was he who stabbed Guilbert Patricio. [5] Trial then ensued.

The prosecution presented the testimonies of Maria Liza Patricio (MariaLiza), [6] the widow of the deceased, and Pedro Luzon (Pedro), [7] an eyewitness atthe scene. The defense offered the testimonies of accused-appellant [8] himselfand Cerilo Pelos (Cerilo), [9] another eyewitness. On rebuttal, the prosecution

recalled Pedro to the witness stand.[10]

Below is a summary of the testimonies of the witnesses for both sides:

Maria Liza testified that in the evening of May 5, 2000, shewas watching her child and at the same time attending to their storelocated in the Ormoc City public market. It was a small store withopen space for tables for drinking being shared by other adjacentstores. At around 7:00 o’clock in the evening, her husband,

Guilbert Patricio (Guilbert) arrived from work. He was met by theirchild whom he then carried in his arms. Moments later, Guilbertnoticed a man urinating at one of the tables in front of theirstore. The man urinating was among those engaged in a drinkingspree in a nearby store. It appears that the accused was with thesame group, seated about two meters away. Guilbert immediatelyadmonished the man urinating but the latter paid no attention andcontinued relieving himself. Guilbert then put down his child whenthe accused rose from his seat, approached Guilbert, drew out aknife and stabbed him below his breast. The accused, as well ashis companions, scampered away while Guilbert called for help

saying “I’m stabbed.” At that time, she was getting her child fromGuilbert and about two feet away from the accused. She easilyrecognized the accused because he would sometimes drink at theirstore. Guilbert was immediately brought to the hospital where helater expired 11:35 of the same evening. She declared that forGuilbert’s medical and hospitalization expenses, the family spentabout P3,000.00. As for the wake and burial expenses, she couldno longer estimate the amount because of her sadness.

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Pedro , an eyewitness at the scene, corroborated Maria

Liza’s testimonial account of the events. On that night, he wasdrinking together with a companion in Maria Liza’s store. Herecalled Guilbert admonishing a person urinating in one of the

tables fronting the store. Thereafter, he saw the accused pass byhim, approach Guilbert and then without warning, stab thelatter. The accused then ran away and left. Together with hisdrinking companion, they rushed Guilbert to the hospital. Pedroasserted that the area’s illumination was “intense” because of thebig white lamp and that he was certain that it was the accused whoattacked Guilbert.

Denial was the accused’s main plea in exculpating himself

of the charge that he killed Guilbert. He claimed that in the eveningof May 5, 2000, he and his wife went to the public market (newbuilding) to collect receivables out of the sale of meat. Afterwards,they took a short cut passing through the public market where theychanced upon his wife’s acquaintances who were engaged in adrinking spree while singing videoke. Among them were DodongDanieles (Dodong for brevity) and his younger brother. Theyinvited him (the accused) and his wife to join them. While theywere drinking, Dodong had an altercation with Guilbert thatstemmed from the latter’s admonition of Dodong’s younger brotherwho had earlier urinated at the Patricio’s store premises. Suddenly,

Dodong assaulted Guilbert and stabbed him. Fearing that he mightbe implicated in the incident, the accused fled and went to thehouse of his parents-in-law. Thereafter, he went back to the marketfor his wife who was no longer there. When he learned that thevictim was brought to the Ormoc District Hospital, he went there toverify the victim’s condition. He was able to talk with the motherand the wife of Guilbert as well as the police. He was thereafterinvited to the precinct so that the police can get his statement. Thenext day, the parents of Dodong Danieles came to his parents-in-law’s house to persuade him not to help the victim’s family. Hedeclined. Half a month later, he was arrested and charged for thedeath of Guilbert Patricio.

The defense also presented one Cerilo Pelos (“Cerilo”) whoclaimed to have personally witnessed the stabbing incidentbecause he was also drinking in the public market on that fatefulnight. He insisted that Guilbert was stabbed by someone wearing ablack shirt, whose identity he later on learned to be DodongDanieles. [11]

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On August 6, 2001, the RTC promulgated its Decision finding accused-appellant guilty of murder and decreeing thus:

WHEREFORE, all the foregoing duly considered, the Courtfinds the accused Vicente Vilbar alias Dikit GUILTY beyondreasonable doubt of the crime of murder as charged, and herebysentences him to imprisonment of reclusion perpetua, [and ordered]to pay the offended party the sum of P75,000.00 as indemnity, thesum of P3,000.00 as medical expenses, the sum of P50,000.00 asmoral damages.

If the accused is a detainee, his period of detention shall becredited to him in full if he abides by the term for convicted

prisoners, otherwise, for only 4/5 thereof.[12]

The foregoing RTC Judgment was directly elevated to us for our review,but in accordance with our ruling in People v. Mateo ,[13] we issued aResolution [14] dated December 1, 2004 referring the case to the Court of Appealsfor appropriate action.

Accused-appellant, represented by the Public Attorney’s Office, [15] and

plaintiff-appellee, through the Office of the Solicitor General,[16]

filed their Briefson August 15, 2006 and April 30, 2007, respectively. The Court of Appeals madethe following determination of the issues submitted for its resolution:

On intermediate review, accused (now accused-appellant)seeks the reversal of his conviction for the crime of murder or in thealternative, the imposition of the proper penalty for the crime ofhomicide. He argues that the trial court erred in giving credence tothe inconsistent, irreconcilable, and incredible testimonies of theprosecution witnesses, to wit: (1) the exact number of personsdrinking with accused-appellant in the adjacent store; (2) whatMaria Liza was doing at the exact time of stabbing; and (3) theaccused-appellant’s reaction after he stabbed thevictim. Moreover, accused-appellant argues that if he was indeedthe culprit, why did he approach Guilbert’s family in the hospitalimmediately after the stabbing incident? Granting without admittingthat a crime of murder was committed, accused-appellant insiststhat he could only be held guilty of homicide for it was not provenbeyond reasonable doubt that treachery and evident premeditation

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existed. He specifically directs our attention to the following details:(1) there was a heated argument between the victim and a memberor members of his group; (2) the stabbing happened in a spur of themoment; and (3) the victim then was not completely defenseless.

Meanwhile, the OSG stresses that the allegedinconsistencies in the testimonies of the prosecution witnesses areminor and inconsequential given the positive identification of theaccused-appellant as the assailant. As to accused-appellant’scontention that he is innocent because he even went to the hospitaland conferred with Guilbert’s relatives immediately after thestabbing incident, the OSG maintains that such actuation is not aconclusive proof of innocence.

The issues for resolution are first, the assessment ofcredibility of the prosecution witnesses; and second, the propriety

of conviction of the accused-appellant for murder.[17]

The Court of Appeals rendered its Decision on February 14, 2008, inwhich it accorded great respect to the assessment by the RTC of the credibility ofthe witnesses. The inconsistencies and inaccuracies in the testimonies of theprosecution witnesses are relatively trivial, minor, and do not impeach theircredibility. The positive identification and categorical statements of theprosecution witnesses that it was accused-appellant who stabbed Guilbert prevail

over accused-appellant’s self-serving denial. However, the appellate court didnot find that treachery attended the stabbing of Guilbert and, thus, downgradedthe crime to homicide. It also reduced the award of civil indemnity. Thedispositive portion of the Court of Appeals decision sentenced accused-appellantas follows:

WHEREFORE, the 1 August 2001 Decision appealed fromfinding accused-appellant VICENTE VILBAR @ “Dikit” guiltybeyond reasonable doubt of murder is MODIFIED. The Court findsthe accused appellant GUILTY beyond reasonable doubt ofHOMICIDE and is hereby sentenced to suffer the penalty of eightyears and one day of prision mayor medium, as minimum, tofourteen years and eight months of reclusion temporal medium, asmaximum. He is also ordered to pay the heirs of Guilbert Patriciothe amounts of Php50,000.00 as civil indemnity, Php50,000.00 asmoral damages, and Php3,000.00 as actual damages. [18]

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Accused-appellant now comes before us on final appeal.

In our Resolution [19] dated April 15, 2009, we gave the parties theopportunity to file their respective supplemental briefs, but the parties manifested

that they had already exhausted their arguments before the Court of Appeals. [20]

After a scrutiny of the records of the case, we find that the submittedevidence and prevailing jurisprudence duly support the findings and conclusion ofthe Court of Appeals.

Evidence in this case chiefly consists of testimonial evidence. Both theRTC and the Court of Appeals gave credence and weight to the testimonies of

the prosecution witnesses.

Case laws mandate that “when the credibility of a witness is in issue, thefindings of fact of the trial court, its calibration of the testimonies of the witnessesand its assessment of the probative weight thereof, as well as its conclusionsanchored on said findings are accorded high respect if not conclusiveeffect. This is more true if such findings were affirmed by the appellate court,since it is settled that when the trial court’s findings have been affirmed by theappellate court, said findings are generally binding upon this Court.” [21] There is

no compelling reason for us to depart from the general rule in this case.

Prosecution witnesses Maria Liza and Pedro both positively andcategorically identified accused-appellant as the one who stabbed Guilbert.

Maria Liza vividly recounted her traumatic moment as follows:

Q: Mrs. Patricio, do you know the accused in this case inthe person of Vicente Vilbar alias “Dikit?”

A: Yes, sir.

Q: Why do you know him? A: He used to go there for drinking in our store.

Q: How long have you known this person? A: About three (3) months.

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x x x x

Q: Mrs. Patricio, can you recall where were you in the eveningat about 7:00 o’clock of May 5, 2000?

A: I was at the store.

Q: Where? A: In the market.

Q: What were you doing in the store? A: I was watching after my, attending to my child there.

Q: How old was the child? A: Two (2) years old.

Q: When you were attending to your child at this particular

time, what happened? A: My child saw my husband arriving.

Q: What happened after your child saw your husband arrivedat the store you were tending?

A: He met him.

Q: And what did your husband do when he was met by yourchild?

A: He cradled the child.

Q: What happened after that? A: So at 7:00 o’clock that evening there was somebodyurinated and my husband told that someone not to urinatethat place because that was a table.

Q: Do you know who was this someone admonished by yourhusband not to urinate because that was a table?

A: No, sir.

Q: Do you know where did he come from? A: They were drinking.

Q: Do you know who was his companion while they weredrinking?

A: No, only that Vicente Vilbar.

Q: From where he came from or from where he was drinking inthe group of persons together with the accused Vicente

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Vilbar, how far was the place wherein they were drinking towhere he urinated from where the group was drinking?

A: Just near.

Q: When you said near, can you estimate the distance?

COURT INTERPRETER

The witness estimated a distance at about 2 meters.

x x x x

Q: What was the reaction of the person urinating when yourhusband told him not to urinate?

A: He continue urinating.

Q: What was the reaction of your husband when he did notheed to the advice not to urinate?

A: He put down the child, this Vicente Vilbar rose.

Q: Rose from where? A: From the table.

Q: And what happened? A: Without any word stabbed my husband.

Q: What did he use in stabbing your husband, this VicenteVilbar? A: Knife.

Q: Do you know, were you able to see where he kept theknife which he used in stabbing your husband?

A: From his waist.

Q: When the said Vicente Vilbar delivered the stabbedthrust to your husband, was your husband hit?

A: He was hit.

Q: On what part of his body was your husband hit? A: Just below the breast.

x x x x

Q: Below the left nipple? A: Yes, sir.

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Q: What happened after your husband was hit below the left

nipple? A: Vicente Vilbar ran away and my husband told me to call for

some help and he said, “I’m stab.”

x x x x

Q: By the way, how far were you to your husband GuilbertPatricio when he was stabbed?

A: I was behind Vicente Vilbar.

Q: When you said you were behind, how far from VicenteVilbar?

A: Just near, sir, from my husband next was the one who

urinated, next Vicente Vilbar and I wasbehind. [22] (Emphases supplied.)

Pedro corroborated Maria Liza’s testimony, recalling the same sequenceof events the night of May 5, 2000, viz :

Q: Who was the companion of Guilbert when he arrived in thevicinity?

A: He was alone.

Q: So what happened after his arrival? A: When he arrived he was with his child.

Q: And what did he do with the child? A: He carried his child in his arms.

Q: And then what happened after he carried his child? A: There was someone who [urinated] somewhere behind us

and he was admonished by this Guilbert Patricio by saying,“Bay, don’t urinate there it would somehow create a badsmell and considering that this is a drinking area.”

Q: Who was that person who relieved himself just nearby? A: I did not know.

Q: Whose group was he coming from? A: From Vicente Vilbar’s companion.

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Q: Did that person who was admonished accede to the requestof Guilbert Patricio not to relieve just nearby?

A: He just did not do something, he just relieved.

Q: So that person who was admonished in fact urinated?

A: Yes, sir.

Q: And so what happened? A: I saw this Vicente Vilbar stood up and pass behind me

and went to Guilbert Patricio and just immediatelystabbed him.

Q: What was the weapon used in stabbing? A: It seems like a knife (and the witness demonstrated to

the Court the length of the weapon at about 10 incheswith the width of about 2 inches).

Q: When this stabbing incident took place, was it in front of youor was it behind?

A: In front of me but I was facing his back.

x x x x

Q: Will you please point to us a part of your body that he washit by the stab thrust?

COURT INTERPRETER

The witness demonstrated below his left nipple and thewitness was pointing to the position below his left nipple.

x x x x

Q: At the time of that incident which was on the eveningof May 5, 2000, did you already know that the personwhom you just pointed earlier was Vicente Vilbar?

A: I did not know about his complete name but I know ofhim as “Dikit” as alias and his face.

x x x x

Q: Under what circumstance that you learned of his name? A: Because I ask the victim himself, that Guilbert Patricio

by saying, “Who was that person who stabbed youDong?,” and then he said “He is known to be Dikit andhis real name is Vicente Vilbar.”

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Q: Prior to the incident, have you seen this Dikit or Vicente

Vilbar? A: Yes, because after we had our tuba drinking spree in

that same day they were there also.

Q: Would you recall how many times you have seenVicente Vilbar prior to the incident?

A: I could not just count how many times but what I’m sureis we know him.

Q: Could it be more than five (5) times? A: It could be. [23] (Emphases supplied.)

The RTC, assessing the aforequoted testimonies, declared:

Maria Liza Patricio is credible. She recognizes the accused, shewas just behind him when he stabbed her husband who was facingthe accused. There was proper illumination of the place x x x andher testimony was not destroyed in the cross-examination. Hertestimony is positive and spontaneous. The Court notes nothing inher demeanor and flow of testimony that would indicate somecontradiction or incredibility.

The other witness, Pedro Luzon, corroborates the testimonyof Maria Liza Patricio. x x x. [24]

The RTC and the Court of Appeals brushed aside the allegedinconsistencies in the testimonies of Maria Liza and Pedro, [25] these beingrelatively trivial and insignificant, neither pertaining to the act constitutive of thecrime committed nor to the identity of the assailant. Also, these minorcontradictions were expected from said witnesses as they differ in theirimpressions of the incident and vantage point in relation to the victim and theaccused-appellant.

In contrast, accused-appellant admitted being present at the scene andtime of the commission of the crime but asserted that one Dodong Danieles wasthe perpetrator thereof. Yet, the RTC was unconvinced by the version of eventsas testified to by accused-appellant himself and Cerilo, because:

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In the observation of the Court, the accused is inconsistentand he talked unintelligibly. His testimony is not credible andperceived to be flimsy excuses. If it is true that his wife was withhim at the time of the incident and he was not involved in thestabbing, why did he have to leave the place and his wife and go to

the house of his parents-in-law rather than their house? Theaccused should have presented his wife to corroborate histestimony in that regard, and also his parents-in-law so the lattercan testify regarding the alleged visitors, the alleged parents of oneDodong Danieles who came to their place when the accused wasalso there days after the incident, telling him not to help the familyof the victim.

The accused’s witness, Cerilo Pelos, is the farthest of theexpected witnesses for the defense. He and the accused were notacquaintances and they only came to know each other in prison

where Pelos is also detained for another charge. x x x. Thetestimony of the witness is hazy and full of generalities, even theway he speaks, the Court notes some inconsistency in his voiceand incoherence in his testimony. [26]

A closer perusal of the testimony of accused-appellant’s corroboratingwitness, Cerilo, reveals just how incoherent and elusive he was in givingparticular details about the stabbing incident:

Q: Now, while you were there, what happened? A: When I arrived there, I arrived with this people having adrinking spree and I myself went to the other table nearthis people and this quite thin or slim guy was standingin front of them and one of these people who werehaving drinking spree seemed to relieve himself not tothe C.R. but beside the store.

Q: Now, you said a while ago that there were four (4)companions of the accused. Now, tell us, were all of the four(4) people that you are referring to that exclude the

accused? A: There were four (4) of them including the accused, sir.

Q: Now, you said that there was somebody from the group whorelieved himself, is that right?

A: Yes, sir, urinated.

Q: And what happened when he urinated?

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A: He was confronted by that slim guy because he did noturinate in the C.R. but just beside the store.

Q: And what happened when the confrontation took place? A: They exchanged words and after that th[e] slim guy left the

one who urinated because it seemed that they were havingan argument.

Q: And then, what happened after that? A: The one who confronted left and this accused stood up went

to this slim guy and talked to him.

Q: This slim guy you are referring to is the person whourinated?

A: Yes, sir.

Q; And so what happened with that meeting between theaccused and the slim guy that you are referring to? A: They were still and they were talking, sir.

Q: Were you able to hear what they were talking about? A: No, sir, because the place was quite cacophonic.

Q: And what happened after that? A: They were still talking when the one who urinated went back

to the table.

Q: And what happened after this person who urinatedwent back to the table? A: They conversed with the one wearing black and after

the conversation he stood up and went to the slim guy.

Q: Who stood up? A: The one named Dodong, the one who was in black and

the one who stabbed.

Q: So, you said that this one wearing black approachedthe slim guy?

A: Yes, sir.

Q: And what happened after that? A: So then, he stabbed him and the one he stabbed ran

away, because he was hit.

Q: How about the accused, where was the accused thenwhen the man in black stabbed the slim guy?

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A: There, and they were still convering (sic) with eachother with the slim guy, sir.

Q: And what did he do after the man in black stabbed the slim[g]uy?

A: He ran away passing by the Apollo and (while the witnesswas demonstrating by pressing his hand to his chest) that hewas hit.

Q: How about you, what did you do after that? A: When the commotion of the people subsided, I asked from

the people around there about the name of the man in blackand after getting the name of the said person, I called up thePolice Precinct I to inform them about the incident.

x x x x

Q: Now, this person whom you said who stabbed the victim,did you meet him before?

A: Not yet, sir.

x x x x

Q: As such a police asset, did you endeavor to know thepersonalities who were involved in that stabbing incident?

A: Yes, sir.

Q: Now, did you get name? A: I only got one name only the name of that guy in black, sir.

Q: Why, did you interview the man in black? A: I asked from those who were there hanging out if ever

they know that person.

Q: Did you not follow the assailant after the stabbingincident?

A: No sir, because after I asked about his name from thebystanders, I immediately called up. [27] (Emphasessupplied.)

Cerilo failed to mention what weapon was used to stab Guilbert ordescribe the manner Guilbert was stabbed. Cerilo also appeared to have mixed-up the personalities in his narration. He first identified the “slim guy” to beGuilbert who reprimanded the person who urinated, but he subsequently referred

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aptly observed the accused could not have madepreparations for the attack, . . .; and the means,method and form thereof could not therefore havebeen thought of by the accused, because the attackwas impulsively done.

Treachery cannot also be presumed fromthe mere suddenness of the attack. . . . In point isthe following pronouncement we made in Peoplev. Escoto :

We can not presume that treachery waspresent merely from the fact that the attack wassudden. The suddenness of an attack, does not ofitself, suffice to support a finding of alevosia , evenif the purpose was to kill, so long as the decision

was made all of a sudden and the victim'shelpless position was accidental. . . . ”

In People v. Bautista , it was held:

“. . . The circumstance that an attack was suddenand unexpected to the person assaulted did notconstitute the element of alevosia necessary toraise homicide to murder, where it did not appearthat the aggressor consciously adopted suchmode of attack to facilitate the perpetration of the

killing without risk to himself. Treachery cannotbe appreciated if the accused did not make anypreparation to kill the deceased in such manneras to insure the commission of the killing or tomake it impossible or difficult for the personattacked to retaliate or defend himself. . . . ”

Applying these principles to the case at bar, we hold that theprosecution has not proven that the killing was committed withtreachery. Although accused-appellant shot the victim from behind,the fact was that this was done during a heated argument.

Accused-appellant, filled with anger and rage, apparently had notime to reflect on his actions. It was not shown that he consciouslyadopted the mode of attacking the victim from behind to facilitatethe killing without risk to himself. Accordingly, we hold thataccused-appellant is guilty of homicide only. [29]

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Similar to Rivera and the cases cited therein, the prosecution in the instantcase merely showed that accused-appellant attacked Guilbert suddenly andunexpectedly, but failed to prove that accused-appellant consciously adoptedsuch mode of attack to facilitate the perpetration of the killing without risk to

himself. As aptly observed by the Court of Appeals:

While it appears that the attack upon the victim was sudden,the surrounding circumstances attending the stabbing incident, thatis, the open area, the presence of the victim’s families and theattending eyewitnesses, works against treachery. If accused-appellant wanted to make certain that no risk would come to him,he could have chosen another time and place to stab thevictim. Yet, accused-appellant nonchalantly stabbed the victim in apublic market at 7:00 o’clock in the evening. The place was well-lighted and teeming with people. He was indifferent to thepresence of the victim’s family or of the other people who couldeasily identify him and point him out as the assailant. He showedno concern that the people in the immediate vicinity might retaliatein behalf of the victim. In fact, the attack appeared to have beenimpulsively done, a spur of the moment act in the heat of anger orextreme annoyance. There are no indications that accused-appellant deliberately planned to stab the victim at said time andplace. Thus, we can reasonably conclude that accused-appellant,who at that time was languishing in his alcoholic state, actedbrashly and impetuously in suddenly stabbing thevictim. Treachery just cannot be appreciated. [30]

Lastly, we review the penalty and damages imposed by the Court of Appeals upon accused-appellant.

The penalty prescribed by law for the crime of homicide is reclusiontemporal .[31] Under the Indeterminate Sentence Law, the maximum of thesentence shall be that which could be properly imposed in view of the attendingcircumstances, and the minimum shall be within the range of the penalty nextlower to that prescribed by the Revised Penal Code.

Absent any mitigating or aggravating circumstance in this case, themaximum of the sentence should be within the range of reclusion temporal in itsmedium term which has a duration of fourteen (14) years, eight (8) months, andone (1) day, to seventeen (17) years and four (4) months; and that the minimum

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should be within the range of prision mayor which has a duration of six (6) yearsand one (1) day to twelve (12) years. Thus, the imposition of imprisonment fromtwelve (12) years of prision mayor , as minimum, to seventeen (17) years and four(4) months of reclusion temporal , as maximum, is in order.

As to the award of damages to Guilbert’s heirs, we affirm the amountsof P50,000.00 as moral damages and P50,000.00 as civil indemnity. Medicaland burial expenses were indisputably incurred by Guilbert’s heirs but the exactamounts thereof were not duly proven. So in lieu of actual damages, we awardGuilbert’s heirs P25,000.00 as temperate damages. Article 2224 of the CivilCode provides that “[t]emperate or moderate damages, which are more thannominal but less than compensatory damages, may be recovered when the court

finds that some pecuniary loss has been suffered but its amount can not, fromthe nature of the case, be proved with certainty.” [32]

WHEREFORE , the instant appeal of accused-appellant ishereby DENIED for lack of merit. The Decision dated February 14, 2008 of theCourt of Appeals in CA-G.R. CR.-H.C. No. 00270 is hereby AFFIRMED withMODIFICATION . Accused-appellant Vicente Vilbar is found GUILTY of thecrime of HOMICIDE , for which he is SENTENCED to imprisonment of twelve (12)years of prision mayor , as minimum, to seventeen (17) years and four (4) months

of reclusion temporal , as maximum, and ORDERED to pay the heirs of GuilbertPatricio the amounts of P50,000.00 as moral damages, P50,000.00 as civilindemnity, and P25,000.00 as temperate damages.

SO ORDERED .

People of the Philippines vs. Ricardo Dearo, Paulino Luague, Wilfredo

Toledo; G.R. No. 190862, October 9, 2013

Circumstantial evidence is sufficient for conviction if: (a) There is more than onecircumstance; (b) The facts from which the inferences are derived are proven;and (c) The combination of all the circumstances is such as to produce aconviction beyond reasonable doubt.

Facts:

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On February 26, 1996 at the house of Jose at Bayawan Negros Oriental accusedRicardo Dearo, Paulino Luague, and Wilfredo Toledo killed Emeterio, Proferiaand Analiza while they were sleeping.

About 10 meters away from the house, Jose and Rolly heard the sound of agunshot coming from inside the house, after which they saw Luague come outsaying, “ Ti, tapos ka man! ” (There, now you are finished!). Jose and Rolly heardwomen’s cries for help immediately followed by a series of rapid gunfire comingfrom the back of the house. Dearo and Toledo emerged from the back of thehouse carrying long firearms, walk with Luague towards the road. After theperpetrators lef, Jose and Rolly found the victims with gunshot wounds inside thehouse, with Emeterio and Porferia already dead, and Analiza still moaning inpain.

In three Informations, the accused were charged with murder, all committed byconspiracy and attended by treachery and evident premeditation.

The RTC found the accused guilty beyond reasonable doubt of three counts ofmurder and sentenced them to suffer the penalty of reclusion perpetua for eachcount. On appeal to the CA, Luague and appellants Dearo and Toledo decriedthe alleged violation of due process due to supposed partiality and vindictivenessof Judge Rosendo B. Bandal, Jr. (Judge Bandal). They also pointed out the lackof evidence, which do not satisfy the standard of proof of beyond reasonabledoubt. On 7 July 2009, the CA rendered a Decision affirming RTC’s ruling.

Issue:

1. Whether or not the guilt of accused was proven beyond reasonable doubteven if the evidences were circumstantial

2. Whether or not the crime was attended with the qualifying circumstance oftreachery

Ruling:

ISSUE I

Section 4, Rule 133 of the Rules of Court, applies when no witness has seen theactual commission of the crime. It states:

SEC. 4. Circumstantial evidence, when sufficient. — Circumstantial evidence issufficient for conviction if:

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(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a convictionbeyond reasonable doubt.

Under the rule on circumstantial evidence, the circumstances shown must beconsistent with each other. They should all support the hypothesis that theaccused is guilty and, at the same time, be inconsistent with the hypothesis thatthe accused is innocent.

We agree with the RTC and the CA in their finding that the followingcircumstances, proven by the prosecution and uncontroverted by the defense,

combine to leave no reasonable doubt that the appellants conspired to kill thevictims:

a) Luague was at odds with Porferia regarding the sharing of their inherited tractof land, as a result of which Luague had threatened her life a few times before.

b) Emeterio was the overseer of the land.

c) Three days before the killing, appellant Dearo vowed to kill Emeterio.

d) About 10 meters away from the house, Jose and Rolly heard the sound of agunshot coming from inside the house, after which they saw Luague come outsaying, “ Ti, tapos ka man! ” (There, now you are finished!).

e) Jose and Rolly heard women’s cries for help immediately followed by a seriesof rapid gunfire coming from the back of the house.

f) Appellants Dearo and Toledo emerged from the back of the house carryinglong firearms.

g) Jose and Rolly found the victims with gunshot wounds inside the house, withEmeterio and Porferia already dead, and Analiza still moaning in pain.

h) A ballistic examination of the recovered metallic fragments and cartridge casesshowed that they were fired from an M-16 rifle, along firearm.

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ISSUE 2

We also find that the qualifying circumstance of treachery wasproperlyappreciated by the RTC and the CA. There is treachery when theoffender commits any of the crimes against persons, employing means, methodsor forms in the execution thereof that tend directly and especially to ensure itsexecution, without risk to himself arising from the defense that the offended partymight make. We have ruled that treachery is present when an assailant takesadvantage of a situation in which the victim is asleep, unaware of the evil design,or has just awakened.

Thus, it has been established that appellants killed Emeterio, Porferia and Analiza. Appreciating treachery as a qualifying circumstance, the crime isproperly denominated as murder. Article 248 of the Revised Penal Code (RPC)punishes murder with reclusion perpetua to death. Since the penalty of death hasbeen prohibited under RA 9346, accused is hereby sentenced the penalty ofreclusion perpetua without eligibility for parole.

Wherefore, the decision of Cebu City Court of Appeals in CA-G.R No. 00035 isaffirmed with modification. Accused Dearo and Toledo is sentenced to reclusionperpetua without eligibility for parole for each of the three counts of murder andordered to pay heirs of Emeterio, Proferia and Analiza amount of P75, 000. 00 ascivil indemnity, P75, 000.00 moral damages, P30, 000.00 as exemplary damagesand P25, 000.00 as temperate damages plus legal interest at the rate of 6%from finality of this decision.

INSTIGATION/ENTRAPMENTPeople vs Naelga

For Review under Rule 45 of the Revised Rules of Court is theDecision [1] dated 30 November 2005 of the Court of Appeals in CA-G.R. CR No.00304 entitled People of the Philippines v. Elly Naelga , affirming theDecision [2] rendered by the Regional Trial Court (RTC) of Rosales, Pangasinan,Branch 53, in Criminal Case No. 4649-R, finding Elly Naelga guilty of the illegalsale of methamphetamine hydrochloride, more popularly known as shabu.

By virtue of a Criminal Complaint, accused-appellant Elly Naelga yBongay (accused-appellant) was indicted before the RTC of Rosales,Pangasinan, Branch 53, for violation of Sections 5 [3] and 11(3), [4] Article II of

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PO2 Noe Sembran testified that upon receiving information from a civilianasset that the accused Elly Naelga was peddling illegal drugs at the publicmarket of Rosales, Pangasinan, Police Chief Inspector Policarpio Cayabyab, Jr.hatched a plan to conduct a buy-bust operation to apprehend the accused. PO2

Sembran was tasked to act as poseur-buyer, with PO1 Danilo Asis, Senior PoliceOfficer (SPO) 1 Jesus Caspillo, and PO1 Rosauro Valdez as backupoperatives. The money used for the buy-bust operation was provided by theRosales Treasurer’s Office and affixed thereto were his signature and that of themunicipal treasurer of Rosales.

In his testimony, PO2 Sembran narrated that on 15 July 2003, he wasinformed by an asset that accused-appellant Elly Naelga was selling illegal drugs

at the Rosales Public Market in Pangasinan. Thereafter, at about three o’clock inthe afternoon of the same day, PO2 Sembran went inside the public market andapproached accused-appellant. PO2 Sembran was familiar with accused-appellant, because the police’s confidential agent had been monitoring accused-appellant’s activities for several weeks. PO2 Sembran talked to accused-appellant, who asked the former if he was a security guard, to which he replied inthe affirmative. While engaged in this conversation, PO2 Sembran asked theaccused-appellant what he could use to keep him awake while on duty as asecurity guard. Accused-appellant suggested that he drink Red Bull. PO2

Sembran replied that he already did, but this did not work, and that he wascaught sleeping on his post. Accused-appellant then declared that he knewsomething more effective, as he passed his index finger under his nose as ifsniffing something. When asked what he meant, accused-appellant told PO2Sembran that he was referring to bato or shabu . PO2 Sembran said he waswilling to try this and to buy Five Hundred Pesos (P500.00) worthof shabu . Accused-appellant told PO2 Sembran to give him the money andcommitted to return with the shabu . PO2 Sembran gave appellant four One

Hundred Pesos (P400.00) in marked bills. Upon receiving the money, accused-appellant left. PO2 Sembran went back to the police station to plan the arrest ofaccused-appellant.

Police Chief Inspector Policarpio C. Cayabyab, Jr. instructed PO2Sembran to act as a poseur-buyer and the other members of the team asbackup. PO2 Sembran and his fellow police officers returned to the public

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market almost an hour later. They waited for accused-appellant until he finallyarrived, alighting from a tricycle. PO2 Sembran followed him in an alley. Therewere people sleeping on bamboo tables in the alley, and PO2 Sembranexpressed apprehension at being noticed. Accused-appellant reassured him that

they would not be disturbed and immediately asked for the balance of OneHundred Pesos (P100.00). PO2 Sembran gave accused-appellant the markedmoney. Thereupon, accused-appellant took out a sachet containing whitegranules and handed it to PO2 Sembran, who then revealed that he was apoliceman. Accused-appellant tried to run, but PO2 Sembran held on to theformer’s belt. They struggled and fell to the pavement. PO1 Valdez came to helpPO2 Sembran arrest accused-appellant. PO2 Sembran was able to recover theOne-Hundred-Peso (P100.00) bill from accused-appellant, who had used the

Four Hundred Pesos (P400.00) he earlier received to buy shabu . Accused-appellant was taken into custody, and PO2 Sembran executed an affidavit ofarrest. The plastic sachet containing 0.04 gram of white crystalline substancepurchased from accused-appellant for P500.00 was marked “EN” and taken tothe Philippine National Police (PNP) Regional Crime Laboratory Office in CampFlorendo, San Fernando, La Union, for laboratory examination. [7] The fourmarked One-Hundred-Peso bills earlier given to accused-appellant were nolonger with him, but the last P100.00 marked bill later paid to him was recovered.

PO1 Rosauro Valdez corroborated PO2 Sembran’s testimony, narratinghow he acted as backup in connection with the buy-bust operation that led to thearrest of accused-appellant.

The parties agreed to dispense with the testimony of the Chemist, PoliceInspector Emelda Besarra Roderos, who conducted the laboratory examinationof the subject drug, considering that the defense admitted the existence,authenticity and due execution of Chemistry Report Number D-260-2003-U dated

16 July 2003, showing that the laboratory examination of the drug confiscatedfrom accused-appellant yielded a positive result for methamphetaminehydrochloride or shabu , a dangerous drug. [8]

For the defense, accused-appellant took the witness stand.

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Accused-appellant denied the accusations against him. He testified thathe was employed by a Muslim named Khadi to sell compact discs (CDs) in a stalllocated inside the public market of Rosales, Pangasinan. PO2 Sembran, whointroduced himself as a security guard, had previously been buying CDs from

him. One Saturday, the exact date of which he could not recall, PO2 Sembrancame at around 8:30 in the morning and bought a battery worth P5.00. OnTuesday of the following week or on 15 July 2003, PO2 Sembran returned andasked accused-appellant to buy shabu for him saying, “We need that thisevening.” He told PO2 Sembran that he did not know anybody selling shabu ;nonetheless, PO2 Sembran leftP400.00, which was placed beside him. He tookthe money, because it might get lost. At around 3:00 o’clock in the afternoon ofthe same day, PO2 Sembran came back to the stall and waited for him. When

he arrived, he gave to PO2 Sembran what he bought. Accused-appellantadmitted, although not certain, that what he bought was shabu, which he gave toPO2 Sembran. After accused-appellant handed over the shabu and while hewas leaving the place, PO2 Sembran called him back uttering, “ Pare , comehere,” and then handcuffed him. PO2 Sembran told him, “ Pare , I am apoliceman” ( pulis ako ). On cross examination, accused-appellant admittedbuying the subject shabu in Urdaneta City.

After hearing, the trial court rendered judgment on the merits. Finding that

the prosecution had proven accused-appellant’s guilt beyond reasonable doubt,the RTC promulgated its Decision on 21 June 2004 convicting him of the offensecharged, sentencing him to Life Imprisonment, and imposing on him a fineof P500,000.00, disposing as follows:

WHEREFORE, the Court hereby finds the accused EllyNaelga guilty beyond reasonable doubt of the crime of illegal saleof Methamphetamine Hydrochloride or “shabu” as charged, definedand penalized under Article II, Section 5 of Republic Act (RA) No.9165. Accordingly, he is sentenced to suffer life imprisonment; topay a fine of Five Hundred Thousand Pesos (P500,000.00); and, topay the costs of suit. [9]

Accused-appellant appealed the decision of the RTC to the Court of Appeals. On 30 November 2005, the Court of Appeals rendered a Decisionaffirming the challenged decision of the trial court, reasoning thus:

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On the other hand, the Office of the Solicitor General is for sustaining

accused-appellant’s conviction, arguing that the alleged inconsistencies areminor and inconsequential and, in fact, do not negate the occurrence of the buy-

bust operation and accused-appellant’s involvement.

The instant controversy involves no less than the liberty of accused-appellant. The presumption of innocence of an accused in a criminal case is abasic constitutional principle, fleshed out by procedural rules that place on theprosecution the burden of proving that the accused is guilty of the offensecharged by proof beyond reasonable doubt. This being an appeal of a criminalcase, opening the entire case up for review, we have carefully reviewed and

evaluated the records and the decisions of the RTC and the Court of Appealsand find no reason to deviate from their rulings.

At the outset, it should be pointed out that prosecutions involving illegaldrugs largely depend on the credibility of the police officers who conducted thebuy-bust operation. Considering that this Court has access only to the cold andimpersonal records of the proceedings, it generally relies upon the assessment ofthe trial court. [14] This Court will not interfere with the trial court’s assessment ofthe credibility of witnesses except when there appears on record some fact or

circumstance of weight and influence which the trial court has overlooked,misapprehended, or misinterpreted. [15] This rule is consistent with the reality thatthe trial court is in a better position to decide the question, having heard thewitnesses themselves and observed their deportment and manner of testifyingduring the trial. [16] Thus, factual findings of the trial court, its calibration of thetestimonies of the witnesses, and its conclusions anchored on its findings areaccorded by the appellate court high respect, if not conclusive effect, more sowhen affirmed by the Court of Appeals, as in this case.

A successful prosecution for the illegal sale of dangerous/prohibited drugsmust establish the following elements:

(1) identities of the buyer and seller, the object, and theconsideration; and

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(2) the delivery of the thing sold and the payment therefor. [17]

As correctly found by the trial court, accused-appellant was caught in abuy-bust operation. He was caught in flagrante delicto selling a dangerous drug,methamphetamine hydrochloride or shabu , to PO2 Noe Sembran on 15 July2003 at the public market of Rosales, Pangasinan, established not only by theclear, straightforward, and convincing testimony of poseur-buyer PO2 NoeSembran and corroborated by PO1 Rosauro Valdez, but also by accused-appellant’s testimony.

Accused-appellant himself confirmed and admitted to the occurrence ofsaid transaction. Following his testimony, he admitted to taking the P400.00 left

by PO2 Sembran for the purchase of shabu , thereafter going to his allegedsource in Urdaneta City, and then returning with the shabu to the Rosales PublicMarket, and handing the sachet over to PO2 Sembran. The foregoing were notonly undisputed but were, in fact, admitted by accused-appellant himself in histestimony. Thus, there is no denying that the said transaction indeed took place.

Desperate to get himself absolved from culpability, accused-appellantsubmits in the alternative that the facts as presented by the prosecution revealthat the law enforcers, specifically PO2 Sembran, instigated him tosell shabu . Accused-appellant claims that it was PO2 Sembran who approachedand asked him to buy shabu , leaving the money even if he said he did not knowanybody selling shabu .

We find no instigation in this case. The general rule is that it is no defenseto the perpetrator of a crime that facilities for its commission were purposelyplaced in his way, or that the criminal act was done upon the “decoy solicitation”of persons seeking to expose the criminal, or that detectives feigning complicity

in the act were present and apparently assisting in its commission. This isparticularly true in that class of cases where the offense is of a kind habituallycommitted, and the solicitation merely furnishes evidence of a course ofconduct. Mere deception by the detective will not shield defendant, if the offensewas committed by him free from the influence or the instigation of thedetective. [18]

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Here, the law enforcers received a report from their confidential informant

that accused-appellant was engaged in illegal drug trade in the public market ofRosales. Poseur-buyer PO2 Sembran then pretended to be engaged in the drug

trade himself and, with the help of his fellow buy-bust operatives, arrestedaccused-appellant in the act of delivering the shabu to him. In an entrapment,ways and means are resorted to for the purpose of trapping and capturing thelawbreakers in the execution of their criminal plan. In instigation, the instigatorpractically induces the would-be defendant into the commission of the offense,and himself becomes a co-principal. Entrapment is no bar to prosecution andconviction; in instigation, the defendant would have to be acquitted.

A buy-bust operation is a form of entrapment, which in recent years hasbeen accepted as a valid and effective mode of arresting violators of theDangerous Drugs Law. In a buy-bust operation, the idea of committing a crimeoriginates from the offender, without anybody inducing or prodding him to committhe offense. [19] In the case at bar, the buy-bust operation was formed by thepolice officers precisely to test the veracity of the tip and in order to apprehendthe perpetrator.

While accused-appellant claims that it was PO2 Sembran who

approached and asked him to buy shabu for him, the same cannot be consideredas an act of instigation, but an act of “feigned solicitation.” Instigation is resortedto for purposes of entrapment, based on the tip received from the policeinformant that accused-appellant was peddling illegal drugs in the public marketof Rosales. In fact, it was accused-appellant who suggested to PO2 Sembranto use shabu; and, despite accused-appellant’s statement that he did not knowanybody selling shabu, he still took the money from PO2 Sembran and directlywent to Urdaneta, where he claimed to have bought the illegal drug. Then he

returned to the Rosales public market and gave the drug to PO2 Sembran.

The records of the case disclose that PO2 Noe Sembran, the designatedposeur-buyer in the buy-bust operation, positively identified accused-appellant asthe seller of the confiscated shabu. His testimony was corroborated by PO1Rosauro Valdez. The object of the corpus delicti was duly established by theprosecution. The sachet confiscated from accused-appellant was positively

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identified, marked and preserved as evidence, and upon laboratory examinationyielded positive for shabu.

Accused-appellant’s assertion that the police operatives failed to comply

with the proper procedure in the chain of custody of the seized drugs is premisedon the idea that non-compliance with the procedure in Section 21(a), Article II ofthe Implementing Rules and Regulations of Republic Act No. 9165 creates anirregularity and overcomes the presumption of regularity accorded policeauthorities in the performance of their official duties.

The argument fails.

Contrary to appellant’s claim, there is no broken chain in the custody ofthe seized items, later on determined to be shabu , from the moment of its seizureby the entrapment team, to its delivery to the investigating officer, to the time itwas brought to the forensic chemist at the PNP Crime Laboratory for laboratoryexamination. It was duly established by documentary, testimonial, and objectevidence, including the markings on the plastic sachet containingthe shabu indicating that the substance tested by the forensic chemist, whoselaboratory tests were well-documented, was the same as that taken fromaccused-appellant.

Failure of the buy-bust team to strictly comply with the provisions of saidsection did not prevent the presumption of regularity in the performance of dutyfrom applying. [20]

The procedure for the custody and disposition of confiscated, seizedand/or surrendered dangerous drugs, among others, is provided under Section21(1), Article II of Republic Act No. 9165:

(1) The apprehending team having initial custody andcontrol of the drugs shall, immediately after seizure andconfiscation, physically inventory and photograph the same in thepresence of the accused or the person/s from whom such itemswere confiscated and/or seized, or his/her representative orcounsel, a representative from the media and the Department of

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Justice (DOJ), and any elected public official who shall be requiredto sign the copies of the inventory and be given a copy thereof.

Section 21(a), Article II of the Implementing Rules and Regulations of Republic

Act No. 9165, which implements said provision, reads:

(a) The apprehending officer/team having initialcustody and control of the drugs shall, immediately after seizureand confiscation, physically inventory and photograph the same inthe presence of the accused or the person/s from whom such itemswere confiscated and/or seized, or his/her representative orcounsel, a representative from the media and the Department ofJustice (DOJ), and any elected public official who shall be requiredto sign the copies of the inventory and be given a copy thereof; x x

x Provided, further, that non-compliance with these requirementsunder justifiable grounds, as long as the integrity and theevidentiary value of the seized items are properly preserved by theapprehending officer/team, shall not render void and invalid suchseizures of and custody over said items.

The above provision further states that non-compliance with the stipulatedprocedure, under justifiable grounds, shall not render void and invalid suchseizures of and custody over said items, for as long as the integrity and

evidentiary value of the seized items are properly preserved by the apprehendingofficers. The evident purpose of the procedure provided for is the preservation ofthe integrity and evidentiary value of the seized items, as the same would beutilized in the determination of the guilt or the innocence of the accused. Itsabsence, by itself, is not fatal to the prosecution’s case and will not dischargeaccused-appellant from his crime. What is of utmost importance is thepreservation of the integrity and the evidentiary value of the seized items, as thesame would be utilized in the determination of the guilt or innocence of theaccused. In the instant case, the integrity of the drugs seized remained intact,and the crystalline substance contained therein was later on determined to bepositive for methamphetamine hydrochloride ( shabu ).

Before the enactment of Republic Act No. 9165, the requirementscontained in Section 21(1) were already present, per Dangerous Drugs BoardRegulation No. 3, Series of 1979. Despite such regulation and the non-

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compliance therewith by the buy-bust team, the Court still applied thepresumption of regularity, holding:

The failure of the arresting police officers to comply with said DDB

Regulation No. 3, Series of 1979 is a matter strictly between theDangerous Drugs Board and the arresting officers and is totallyirrelevant to the prosecution of the criminal case for the reason thatthe commission of the crime of illegal sale of a prohibited drug isconsidered consummated once the sale or transaction isestablished x x x and the prosecution thereof is not undermined bythe failure of the arresting officers to comply with the regulations ofthe Dangerous Drugs Board. [21]

Assuming arguendo that the presumption of regularity in the performance

of official duty will not apply due to the failure to comply with Section 21(a), thesame will not automatically lead to the exoneration of the accused. Accused-appellant’s conviction was based not solely on said presumption, but on thedocumentary and real evidence; and, more importantly, on the oral evidence ofprosecution witnesses, whom we found to be credible. One witness is sufficientto prove the corpus delicti - that there was a consummated sale between theposeur-buyer and the accused - there being no quantum of proof as to thenumber of witnesses to prove the same. To emphasize, accused-appellanthimself verified in his testimony that the said transaction took place.

The inconsistencies pointed out by the defense pertaining to whether ornot he was already inside the public market of Rosales at the time the operativesreturned, or if the buy-bust team saw him alighting from a tricycle, is aninconsistency immaterial to the commission of the offense and, thus, cannotaffect the overall credibility of the prosecution witnesses.

The records of the case indicate that after his arrest, accused-appellant

was taken into police custody. After the arrest, the seized item, which had themarking “EN” and alleged to contain shabu, was brought to the PNP crimelaboratory for examination. [22] The request for laboratory examination andtransfer of the confiscated sachet to the PNP crime laboratory was prepared byChief of Police Policarpio C. Cayabyab, Jr. [23] The request indicated that theseized item was delivered by PO3 Resuello, Jr. and received by Forensic

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Chemist P/Insp. Emelda Besarra Roderos, [24] the same person who conductedlaboratory tests on the substance. The transparent plastic sachet containing awhite crystalline substance was later on determined to be positive formethylamphetamine hydrochloride or shabu .

PO2 Sembran positively identified the plastic sachetcontaining shabu, which he had bought from accused-appellant in the buy-bustoperation. Thus, the identity of the shabu taken from accused-appellant had beenduly preserved and established by the prosecution. Besides, the integrity of theevidence is presumed to be preserved, unless there is a showing of bad faith, illwill, or proof that the evidence has been tampered with. The accused-appellantin this case bears the burden of making some showing that the evidence was

tampered or meddled with to overcome the presumption of regularity in thehandling of exhibits by public officers and the presumption that public officersproperly discharged their duties. There is no doubt that the sachet marked “EN,”which was submitted for laboratory examination and found to be positivefor shabu , was the same one sold by accused-appellant to the poseur-buyer PO2Sembran during the buy-bust operation.

Finally, accused-appellant’s claim that he is a victim of a frame-up isviewed by this Court with disfavor, because being a victim can easily be feigned

and fabricated. There being no proof of ill motive on the part of the policeoperatives to falsely accuse him of such a grave offense, the presumption ofregularity in the performance of official duty and the findings of the trial court withrespect to the credibility of witnesses shall prevail over the claim of the accused-appellant. [25] While the presumption of regularity in the performance of officialduty by law enforcement agents should not by itself prevail over the presumptionof innocence, for the claim of frame-up to prosper, the defense must be able topresent clear and convincing evidence to overcome this presumption of

regularity, which the defense was not able to proffer.

Accused-appellant was charged with the unauthorized sale and delivery ofa dangerous drug in violation of the provisions of Section 5, Article II of Republic

Act No. 9165.

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unlawfully and feloniously receive and acquire from unknown person involvingthirteen (13) truck tires worth P65, 975.00, belonging to FRANCISCO AZAJAR YLEE, and thereafter selling One (1) truck tire knowing the same to have beenderived from the crime of robbery.

CONTRARY TO LAW.

Upon arraignment, Ong entered a plea of "not guilty." Trial on the merits ensued,and the RTC found him guilty beyond reasonable doubt of violation of P.D. 1612.The dispositive portion of its Decision reads: chanroblesvirtualawlibrary

WHEREFORE, premises considered, this Court finds that the prosecution hasestablished the guilt of the accused JAIME ONG y ONG beyond reasonabledoubt for violation of Presidential Decree No. 1612 also known as Anti-FencingLaw and is hereby sentenced to suffer the penalty of imprisonment of 10 yearsand 1 day to 16 years with accessory penalty of temporary disqualification.

SO ORDERED. 4chanroblesvirtualawlibrary

Dissatisfied with the judgment, Ong appealed to the CA. After a review of therecords, the RTC's finding of guilt was affirmed by the appellate court in aDecision dated 18 August 2009.

Ong then filed the instant appeal before this Court.

The Facts

The version of the prosecution, which was supported by the CA, is asfollows: chanroblesvirtualawlibrary

Private complainant was the owner of forty-four (44) Firestone truck tires,described as T494 1100 by 20 by 14. He acquired the same for the total amountof P223,401.81 from Philtread Tire and Rubber Corporation, a domesticcorporation engaged in the manufacturing and marketing of Firestone tires.Private complainant's acquisition was evidenced by Sales Invoice No. 4565dated November 10, 1994 and an Inventory List acknowledging receipt of thetires specifically described by their serial numbers. Private complainant markedthe tires using a piece of chalk before storing them inside the warehouse in 720

San Jose St., corner Sta. Catalina St., Barangay San Antonio Valley 1, Sucat,Parañaque, owned by his relative Teody Guano. Jose Cabal, Guano's caretakerof the warehouse, was in charge of the tires. After appellant sold six (6) tiressometime in January 1995, thirty-eight (38) tires remained inside the warehouse.

On February 17, 1995, private complainant learned from caretaker Jose Cabalthat all thirty-eight (38) truck tires were stolen from the warehouse, the gate of

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which was forcibly opened. Private complainant, together with caretaker Cabal,reported the robbery to the Southern Police District at Fort Bonifacio.

Pending the police investigation, private complainant canvassed from numerousbusiness establishments in an attempt to locate the stolen tires. On February 24,

1995, private complainant chanced upon Jong's Marketing, a store selling tires inPaco, Manila, owned and operated by appellant. Private complainant inquired ifappellant was selling any Model T494 1100 by 20 by 14 ply Firestone tires, towhich the latter replied in the affirmative. Appellant brought out a tire fitting thedescription, which private complainant recognized as one of the tires stolen fromhis warehouse, based on the chalk marking and the serial number thereon.Private complainant asked appellant if he had any more of such tires in stock,which was again answered in the affirmative. Private complainant then left thestore and reported the matter to Chief Inspector Mariano Fegarido of theSouthern Police District.

On February 27, 1995, the Southern Police District formed a team to conduct abuy-bust operation on appellant's store in Paco, Manila. The team wascomposed of six (6) members, led by SPO3 Oscar Guerrero and supervised bySenior Inspector Noel Tan. Private complainant's companion Tito Atienza wasappointed as the poseur-buyer.

On that same day of February 27, 1995, the buy-bust team, in coordination withthe Western Police District, proceeded to appellant's store in Paco, Manila. Theteam arrived thereat at around 3:00 in the afternoon. Poseur-buyer Tito Atienzaproceeded to the store while the rest of the team posted themselves across thestreet. Atienza asked appellant if he had any T494 1100 by 20 by 14 Firestone

truck tires available. The latter immediately produced one tire from his display,which Atienza bought for P5,000.00. Atienza asked appellant if he had any morein stock.

Appellant then instructed his helpers to bring out twelve (12) more tires from hiswarehouse, which was located beside his store. After the twelve (12) truck tireswere brought in, private complainant entered the store, inspected them andfound that they were the same tires which were stolen from him, based on theirserial numbers. Private complainant then gave the prearranged signal to the buy-bust team confirming that the tires in appellant's shop were the same tires stolenfrom the warehouse.

After seeing private complainant give the pre-arranged signal, the buy-bust teamwent inside appellant's store. However, appellant insisted that his arrest and theconfiscation of the stolen truck tires be witnessed by representatives from thebarangay and his own lawyer. Resultantly, it was already past 10:00 in theevening when appellant, together with the tires, was brought to the police stationfor investigation and inventory. Overall, the buy-bust team was able to confiscatethirteen (13) tires, including the one initially bought by poseur-buyer Tito Atienza.

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The tires were confirmed by private complainant as stolen from hiswarehouse. 5chanroblesvirtualawlibrary

For his part, accused Ong solely testified in his defense, alleging that he hadbeen engaged in the business of buying and selling tires for twenty-four (24)

years and denying that he had any knowledge that he was selling stolen tires inJong Marketing. He further averred that on 18 February 1995, a certain RamonGo (Go) offered to sell thirteen (13) Firestone truck tires allegedly from Dagat-dagatan, Caloocan City, for P3,500 each. Ong bought all the tires for P45,500,for which he was issued a Sales Invoice dated 18 February 1995 and with theletterhead Gold Link Hardware & General Merchandise (GoldLink). 6chanroblesvirtualawlibrary

Ong displayed one (1) of the tires in his store and kept all the twelve (12) othersin his bodega. The poseur-buyer bought the displayed tire in his store and cameback to ask for more tires. Ten minutes later, policemen went inside the store,

confiscated the tires, arrested Ong and told him that those items were stolentires. 7chanroblesvirtualawlibrary

The RTC found that the prosecution had sufficiently established that all thirteen(13) tires found in the possession of Ong constituted a prima facie evidence offencing. Having failed to overcome the presumption by mere denials, he wasfound guilty beyond reasonable doubt of violation of P.D.1612. 8chanroblesvirtualawlibrary

On appeal, the CA affirmed the RTC's findings with modification by reducing theminimum penalty from ten (10) years and one (1) day to six (6) years of prision

correcional.9

chanroblesvirtualawlibrary OUR RULING

The Petition has no merit.

Fencing is defined in Section 2(a) of P.D. 1612 as the "act of any person who,with intent to gain for himself or for another, shall buy, receive, possess, keep,acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner dealin any article, item, object or anything of value which he knows, or should beknown to him, to have been derived from the proceeds of the crime of robbery or

theft."The essential elements of the crime of fencing are as follows: (1) a crime ofrobbery or theft has been committed; (2) the accused, who is not a principal or onaccomplice in the commission of the crime of robbery or theft, buys, receives,possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or inany manner deals in any article, item, object or anything of value, which hasbeen derived from the proceeds of the crime of robbery or theft; (3) the accused

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knew or should have known that the said article, item, object or anything of valuehas been derived from the proceeds of the crime of robbery or theft; and (4) thereis, on the part of one accused, intent to gain for oneself or foranother. 10 chanroblesvirtualawlibrary

We agree with the RTC and the CA that the prosecution has met the requisitequantum of evidence in proving that all the elements of fencing are present in thiscase.

First, the owner of the tires, private complainant Francisco Azajar (Azajar),whose testimony was corroborated by Jose Cabal - the caretaker of thewarehouse where the thirty-eight (38) tires were stolen testified that the crime ofrobbery had been committed on 17 February 1995. Azajar was able to proveownership of the tires through Sales Invoice No. 4565 11 dated 10 November1994 and an Inventory List. 12 Witnesses for the prosecution likewise testified thatrobbery was reported as evidenced by their Sinumpaang Salaysay 13 taken at the

Southern Police District at Fort Bonifacio.14

The report led to the conduct of a buy-bust operation at Jong Markerting, Paco, Manila on 27 February 1995.

Second, although there was no evidence to link Ong as the perpetrator of therobbery, he never denied the fact that thirteen (13) tires of Azajar were caught inhis possession. The facts do not establish that Ong was neither a principal nor anaccomplice in the crime of robbery, but thirteen (13) out of thirty-eight (38)missing tires were found in his possession. This Court finds that the serialnumbers of stolen tires corresponds to those found in Ong's possession. 15 Onglikewise admitted that he bought the said tires from Go of Gold Link in the totalamount of ?45,500 where he was issued Sales Invoice No.

980.16

chanroblesvirtualawlibrary Third, the accused knew or should have known that the said article, item, objector anything of value has been derived from the proceeds of the crime of robberyor theft. The words "should know" denote the fact that a person of reasonableprudence and intelligence would ascertain the fact in performance of his duty toanother or would govern his conduct upon assumption that such factexists. 17 Ong, who was in the business of buy and sell of tires for the past twenty-four (24) years, 18 ought to have known the ordinary course of business inpurchasing from an unknown seller. Admittedly, Go approached Ong and offeredto sell the thirteen (13) tires and he did not even ask for proof of ownership of the

tires.19

The entire transaction, from the proposal to buy until the delivery of tireshappened in just one day. 20 His experience from the business should have givenhim doubt as to the legitimate ownership of the tires considering that it was hisfirst time to transact with Go and the manner it was sold is as if Go was justpeddling the thirteen (13) tires in the streets.

In Dela Torre v. COMELEC, 21 this Court had enunciatedthat: chanroblesvirtualawlibrary

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Circumstances normally exist to forewarn, for instance, a reasonably vigilantbuyer that the object of the sale may have been derived from the proceeds ofrobbery or theft. Such circumstances include the time and place of the sale, bothof which may not be in accord with the usual practices of commerce. The natureand condition of the goods sold, and the fact that the seller is not regularly

engaged in the business of selling goods may likewise suggest the illegality oftheir source, and therefore should caution the buyer. This justifies thepresumption found in Section 5 of P.D. No. 1612 that "mere possession of anygoods, . . ., object or anything of value which has been the subject of robbery orthievery shall be prima facie evidence of fencing" a presumption that is,according to the Court, "reasonable for no other natural or logical inference canarise from the established fact of . . . possession of the proceeds of the crime ofrobbery or theft." xxx. 22 chanroblesvirtualawlibrary

Moreover, Ong knew the requirement of the law in selling second hand tires.Section 6 of P.D. 1612 requires stores, establishments or entities dealing in the

buying and selling of any good, article, item, object or anything else of valueobtained from an unlicensed dealer or supplier thereof to secure the necessaryclearance or permit from the station commander of the Integrated National Policein the town or city where that store, establishment or entity is located beforeoffering the item for sale to the public. In fact, Ong has practiced the procedure ofobtaining clearances from the police station for some used tires he wanted toresell but, in this particular transaction, he was remiss in his duty as a diligentbusinessman who should have exercised prudence.

In his defense, Ong argued that he relied on the receipt issued to him by Go.Logically, and for all practical purposes, the issuance of a sales invoice or receipt

is proof of a legitimate transaction and may be raised as a defense in the chargeof fencing; however, that defense is disputable. 23 In this case, the validity of theissuance of the receipt was disputed, and the prosecution was able to prove thatGold Link and its address were fictitious. 24 Ong failed to overcome the evidencepresented by the prosecution and to prove the legitimacy of the transaction.Thus, he was unable to rebut the prima facie presumption under Section 5 ofP.D. 1612.

Finally, there was evident intent to gain for himself, considering that during thebuy-bust operation, Ong was actually caught selling the stolen tires in his store,Jong Marketing.

Fencing is malum prohibitum, and P.D. 1612 creates a prima fqcie presumptionof fencing from evidence of possession by the accused of any good, article, item,object or anything of value, which has been the subject of robbery or theft; andprescribes a higher penalty based on the value of the 25 property.

The RTC and the CA correctly computed the imposable penalty based on P5,075for each tire recovered, or in the total amount of P65,975. Records show that

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Azajar had purchased forty-four (44) tires from Philtread in the total amountof P223,40 1.81. 26 Section 3 (p) of Rule 131 of the Revised Rules of Courtprovides a disputable presumption that private transactions have been fair andregular. Thus, the presumption of regularity in the ordinary course of business isnot overturned in the absence of the evidence challenging the regularity of the

transaction between Azajar ,and Phil tread.

In tine, after a careful perusal of the records and the evidence adduced by theparties, we do not find sufficient basis to reverse the ruling of the CA affirming thetrial court's conviction of Ong for violation of P.D. 1612 and modifying theminimum penalty imposed by reducing it to six ( 6) years of prision correccional.

WHEREFORE, premises considered, the Petition is DENIED for lack of merit. Accordingly, the assailed Decision of the Court of Appeals in CA-G.R. CR No.30213 is hereby AFFIRMED.

SO ORDERED .

Mel Dimat , Petitionervs.People of the Philippines , RespondentAbad, J.:Facts: Sonia Delgado, wife of herein respondent, brought a Nissan Safari from Mel

Dimat. Spouses Delgadowhere driving along E. Rodriguez Ave. when they wereapprehended by the Traffic Management Group(TMG), afterwards they found outthat the vehicle was a stolen property. Samson and Mantequilla, theregisteredowner of the vehicle, filed charges against Mel Dimat for violation of the Anti-Fencing Law.On his defense he claims that he did not know Mantequilla, and thathe bought it in good faith for value.The RTC found him to guilty and which the CAaffirms with modification.Issue: Whether or not Dimat knowingly sold for gain the Nissan Safari which was earlierstolen.Ruling:

The elements of “fencing” are 1) a robbery or theft has been committed; 2) theaccused, who took nopart in the robbery or theft, “buys, receives, possesses,keeps,acquires, conceals, sells or disposes, orbuys and sells, or in any manner deals in any article or object taken” during thatrobbery or theft; (3) theaccused knows or should have known that the thing derived from that crime; and(4) he intends by thedeal he makes to gain for himself or for another.Dimat

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testified that he met Tolentino at the Holiday Inn Casino where the latter gave theNissan Safarito him as collateral for a loan. Tolentino supposedly showed himthe old certificate of registration andofficial receipt of the vehicle and evenpromised to give him a new certificate of registration and officialreceipt already in his name. But Tolentino reneged on this promise. Dimat insists

that Tolentino’sfailure to deliver the documents should not prejudice him in any way. Delgadohimself could notproduce any certificate of registration or official receipt.Based onthe above, evidently, Dimat knew that the Nissan Safari he bought was notproperlydocumented. He said that Tolentino showed him its old certificate ofregistration and official receipt.But this certainly could not be true because, thevehicle having been carnapped, Tolentino had nodocuments to show. ThatTolentino was unable to make good on his promise to produce newdocumentsundoubtedly confirmed to Dimat that the Nissan Safari came from an illicitsource. Still,Dimat sold the same to Sonia Delgado who apparently made noeffort to check the papers covering her

purchase. That she might herself be liable for fencing is of no moment since shedid not stand accusedin the case.WHEREFORE, the Court AFFIRMS thedecision of the Court of Appeals dated October 26, 2007 inCA-G.R. CR 29794.

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