ALVIN
JOSE,
Petitioner,
-versus-
G.R.
No. 162052
January
13, 2005
PEOPLE OF THE PHILIPPINES,
Respondent.
D
E C I S I O N
CALLEJO,
SR., J.:
This
is a Petition for Review on
Certiorari
of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 22289
affirming with modification the Decision[2] of the Regional Trial Court
of Calamba, Laguna, Branch 36, convicting the accused therein of
violation of Section 21(b), Article IV in relation to Section 29,
Article IV of Republic Act No. 6425, as amended.
The
records show that Alvin Jose and Sonny Zarraga were charged with the
said crime in an Information, the accusatory portion of which reads:
That on or about
November 14, 1995, in the municipality of Calamba, Province of Laguna,
and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another,
not being licensed or authorized by law, did then and there willfully,
unlawfully and feloniously sell and deliver to other person
METHAMPHETAMINE HYDROCHLORIDE (or shabu) weighing 98.40 grams, a
regulated drug, and in violation of the aforestated law.
CONTRARY
TO LAW.[3]
The
accused, assisted by counsel, pleaded not guilty to the charge.
As
culled by the trial court, the evidence of the prosecution established
the following:
[O]n November 14,
1995, P/Supt. Joseph R. Castro of the Fourth Regional Narcotics Unit
received an information from an unnamed informant. Said unnamed
informant was introduced to him by former Narcom P/Senior Inspector
Recomono. The information was that a big time group of drug
pushers from Greenhills will deliver 100 grams of shabu at Chowking
Restaurant located at Brgy. Real, Calamba, Laguna.
Acting
on such report, SPO1 Bonifacio Guevarra was assigned to act as the
poseur-buyer. SPO2 William Manglo and SPO2 Wilfredo Luna were the
other members of the team. SPO1 Guevarra was provided with marked
money consisting of a P1,000.00 bill on top of a bundle of make-believe
“money bills” supposedly amounting to P100,000.00. P/Supt. Joseph
R. Castro, SPO2 William Manglo and Wilfredo Luna went to the place on a
Mitsubishi Lancer while SPO1 Guevarra and the informant boarded an
L-300 van. They arrived at the Chowking Restaurant at about 11:00
in the morning. They positioned their cars at the parking area
where they had a commanding view of people going in and out (TSN,
October 3, 1996, pp. 2-8 and TSN, July 11, 1996, pp. 4-7).
It was
about 4 o’clock in the afternoon when a Toyota Corolla with Plate No.
UBV-389 arrived. Sonny Zarraga was the driver with Alvin
Jose. The unnamed informant approached and talked to Sonny
Zarraga. Then, the informant called SPO1 Bonifacio Guevarra and
informed the latter that Sonny Zarraga had with him 100 grams of
shabu. SPO1 Bonifacio Guevarra offered to buy the shabu.
Sonny Zarraga asked SPO1 Bonifacio Guevarra if he had the money to buy
100 grams of shabu. Guevarra responded in the affirmative.
He showed the aforecited bundle of “money bills.” Sonny Zarraga then
asked Alvin Jose to bring out the shabu and handover (sic) to Bonifacio
Guevarra. SPO1 Bonifacio Guevarra, in turn, handed the bundle of
“money bills.”
Guevarra
scratched his head, the pre-arranged signal to signify that the
transaction was consummated (TSN, July 30, 1996, pp. 3-8).
Immediately thereafter, William Manglo and Wilfredo Luna approached and
introduced themselves as Narcom Operatives. They arrested Sonny
Zarraga and Alvin Jose. The buy-bust bundle of “money bills” and
the shabu were recovered. The two were brought to Camp Vicente
Lim for investigation. Edgar Groyon conducted the
investigation. The shabu was brought to the PNP Crime Laboratory
for examination (TSN, July 30, 1996, pp. 9-10 and TSN, October 3, 1996,
pp. 9-13). P/Senior Inspector Mary Jean Geronimo examined the
shabu. She reported and testified that the specimen, indeed, was
a second or low grade methamphetamine hydrochloride (TSN, July 30,
1996, pp. 31-36).[4]
On the
other hand, the accused therein were able to establish the following
facts:
Sonny Zarraga and
Alvin Jose claimed that, on November 13, 1995, they were at SM Mega
Mall (sic), Mandaluyong, Metro Manila, to change money. Suddenly, a
person with a hand bag appeared and ordered them to handcuff
themselves. They were later able to identify three of these
people as Police Supt. Joseph Roxas Castro, SPO3 Noel Seno and a
certain Corpuz. They were all in civilian clothes.
They
proceeded to where Sonny Zarraga’s car was parked. Sonny Zarraga
was forced to board another car while another person drove Sonny
Zarraga’s car with Alvin Jose as passenger. They drove towards
Greenhills. They were eventually blindfolded. On the way to
Greenhills, one of the men opened the gloves compartment of Sonny
Zarraga’s car. One of the men saw a substance inside the said
compartment. He tasted it. Said person asked Sonny Zarraga
if he could come up with P1.5 Million peso (sic). Col. Castro
even showed the picture of Sonny Zarraga’s mother-in-law who was
supposed to be a rich drug pusher.
They
ended up inside a room with a lavatory. While inside the said
room, Sonny Zarraga’s cellular phone rung. It was a call from
Sonny Zarraga’s wife. Col. Castro talked to Pinky Zarraga and asked her
if she could pay P1.5 Million as ransom for the release of Sonny
Zarraga. Sonny Zarraga instead offered to withdraw money from the
bank in the amount of P75,000.00. The agreement was that in the
bank, Pinky Zarraga would withdraw the money and deliver it to Col.
Castro in exchange for Sonny Zarraga’s release. The agreement did
not materialize. Col. Castro and Pinky Zarraga met inside the
bank but Pinky Zarraga refused to withdraw the money as Sonny Zarraga
was nowhere to be seen. There was a commotion inside the bank
which prompted the bank manager to call the police.
Col.
Castro left the bank in a hurry, passed by for Alvin Jose who was left
at the room and brought them to Camp Vicente Lim. There, they
were investigated.
The
defense claimed that SPO3 Noel Seno got Sonny Zarraga’s jewelry,
P85,000.00 in cash and Sonny Zarraga’s car spare tire, jack and
accessories. Noel Seno was even able to withdraw the P2,000.00 using
Sonny Zarraga’s ATM card.[5]
On
June 10, 1998, the trial court rendered judgment convicting both
accused of the crime charged and sentencing each of them to an
indeterminate penalty. The fallo of the decision reads:
WHEREFORE, this
Court finds both the accused Sonny Zarraga and Alvin Jose guilty beyond
reasonable doubt, for violation of R.A. 6425, as amended, and is hereby
sentenced to suffer the penalty of imprisonment of, after applying the
Indeterminate Sentence Law, six (6) years and one (1) day to ten (10)
years.
Both
accused are hereby ordered to pay the fine of P2 million each and to
pay the cost of suit.
In the
service of sentence, the preventive imprisonment undergone both by the
accused shall be credited in their favor.
Atty.
Christopher R. Serrano, Branch Clerk of Court, is hereby ordered to
deliver and surrender the confiscated Methamphetamine Hydrochloride to
the Dangerous Drugs Board.
SO
ORDERED.[6]
On
appeal to the CA, the accused-appellants averred that the trial court
erred as follows:
I
THE
TRIAL COURT GRAVELY ERRED IN GIVING FULL CREDENCE TO THE EVIDENCE
PRESENTED BY THE PROSECUTION.
II
THE
TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THAT THE MERE PRESENTATION
OF THE SHABU IN COURT IS NOT SUFFICIENT TO FIND, WITH ABSOLUTE
CERTAINTY, THAT THE APPELLANTS COMMITTED THE CRIME OF SELLING
PROHIBITED DRUGS, ESPECIALLY WHEN THE IDENTITY OF THE DRUG WAS NOT
PARTICULARLY SET OUT IN THE TESTIMONY OF THE PROSECUTION WITNESSES.
III
EVEN
GRANTING THAT THE TRIAL COURT CORRECTLY FOUND THE APPELLANTS GUILTY OF
THE CRIME CHARGED AGAINST THEM:
(a) THE TRIAL
COURT DID NOT IMPOSE THE PROPER PENALTY AGAINST THEM.
(b)
EACH OF THE APPELLANTS CANNOT BE MADE TO PAY A FINE IN THE AMOUNT OF P2
MILLION PESOS (SIC) AND THE COST OF THE SUIT.[7]
The CA
rendered judgment affirming the decision appealed from with
modification. The appellate court reduced the penalty imposed on
appellant Alvin Jose, on its finding that he was only thirteen (13)
years old when he committed the crime; hence, he was entitled to the
privileged mitigating circumstance of minority and to a reduction of
the penalty by two degrees. The appellant filed a motion for
reconsideration, alleging that since the Information failed to allege
that he acted with discernment when the crime was committed and that
the prosecution failed to prove the same, he should be acquitted.
The appellate court denied the motion.
Appellant
Jose, now the petitioner, filed his petition for review on certiorari,
alleging that –
THE COURT OF
APPEALS GRAVELY ERRED IN NOT ACQUITTING PETITIONER DESPITE (1) THE
FAILURE OF THE PROSECUTION TO PROVE BEYOND REASONABLE DOUBT THAT
PETITIONER, WHO WAS ONLY 13 YEARS OLD WHEN THE CRIME WAS ALLEGEDLY
COMMITTED BY HIM IN CONSPIRACY WITH CO-ACCUSED SONNY ZARRAGA, ACTED
WITH DISCERNMENT, AND (2) THE ABSENCE OF A DECLARATION BY THE TRIAL
COURT THAT PETITIONER SO ACTED WITH DISCERNMENT, PURSUANT TO THE
APPLICABLE PROVISIONS OF THE REVISED PENAL CODE AND THE ESTABLISHED
JURISPRUDENCE.[8]
The
petitioner asserts that, under paragraph 3, Article 12 of the Revised
Penal Code, a minor over nine (9) and under fifteen (15) years of age
at the time of the commission of the crime is exempt from criminal
liability unless he acted with discernment, in which case he shall be
proceeded against in accordance with Article 192 of Presidential Decree
(P.D.) No. 603, as amended by P.D. No. 1179, as provided for in Article
68 of the Revised Penal Code. He avers that the prosecution was
burdened to allege in the Information and prove beyond reasonable doubt
that he acted with discernment, but that the prosecution failed to do
so. The petitioner insists that the court is mandated to make a
finding that he acted with discernment under paragraph 1, Article 68 of
the Revised Penal Code and since the CA made no such finding, he is
entitled to an acquittal.
For
its part, the Office of the Solicitor General (OSG) asserts that the
allegation in the Information that the petitioner and his co-accused
conspired and confederated to sell the shabu subject of the Information
sufficiently avers that the petitioner acted with discernment; hence,
there was no need for the public prosecutor to allege specifically in
the Information that the petitioner so acted. It contends that it
is not necessary for the trial and appellate courts to make an express
finding that the petitioner acted with discernment. It is enough
that the very acts of the petitioner show that he acted knowingly and
was sufficiently possessed with judgment to know that the acts he
committed were wrong.
The
petition is meritorious.
Under
Article 12(3) of the Revised Penal Code, a minor over nine years of age
and under fifteen is exempt from criminal liability if charged with a
felony. The law applies even if such minor is charged with a crime
defined and penalized by a special penal law. In such case, it is
the burden of the minor to prove his age in order for him to be exempt
from criminal liability. The reason for the exemption is that a
minor of such age is presumed lacking the mental element of a crime –
the capacity to know what is wrong as distinguished from what is right
or to determine the morality of human acts; wrong in the sense in which
the term is used in moral wrong.[9] However, such presumption is
rebuttable.[10] For a minor at such an age to be criminally liable, the
prosecution is burdened[11] to prove beyond reasonable doubt, by direct
or circumstantial evidence, that he acted with discernment, meaning
that he knew what he was doing and that it was wrong.[12] Such
circumstantial evidence may include the utterances of the minor; his
overt acts before, during and after the commission of the crime
relative thereto; the nature of the weapon used in the commission of
the crime; his attempt to silence a witness; his disposal of evidence
or his hiding the corpus delicti.
In the
present case, the prosecution failed to prove beyond reasonable doubt
that the petitioner, who was thirteen (13) years of age when the crime
charged was committed, acted with discernment relative to the sale of
shabu to the poseur-buyer. The only evidence of the prosecution
against the petitioner is that he was in a car with his cousin,
co-accused Sonny Zarraga, when the latter inquired from the
poseur-buyer, SPO1 Bonifacio Guevarra, if he could afford to buy
shabu. SPO1 Guevarra replied in the affirmative, after which the
accused Zarraga called the petitioner to bring out and hand over the
shabu wrapped in plastic and white soft paper. The petitioner
handed over the plastic containing the shabu to accused Zarraga, who
handed the same to the poseur-buyer:
Q
Whom did you approach to buy the shabu?
A
The two of them, Sir.
Q
While the two of them was (sic) sitting inside the car, what did you
tell them?
A
They asked me if I can afford to buy the 100 grams, Sir.
Q
And what was your response?
A
I answer in (sic) affirmative, Sir.
Q
And what happened next?
A
After that I showed my money, Sir.
Q
Now, tell us when you said they reply (sic) in the affirmative
specifically…. I withdraw that.
Q
When you said they asked you whether you can afford to buy 100 grams
tell us who asked you that question?
A
Sonny Zarraga, Sir.
Q
And after you answer (sic) in the affirmative, what was his response?
A
He let his companion to (sic) bring out the shabu, Sir.
Q
Did his companion bring out the shabu?
A
Yes, Sir.
Q
What happened to the shabu?
A
Alvin Jose handed the shabu to his companion Sonny Zarraga.
Q
After that, what did Sonny Zarraga do with the shabu?
A
He handed it to me, Sir.
Q
After this shabu was handed to you, what happened next?
A
After examining the shabu, I put it in my pocket and then I handed to
him the money, Sir.
Q
When you say money, which money are you referring to?
A
The P1,000.00 bill with the bundle of boodle money, Sir.
Q
Now, after you handed the money to the accused, what happened next?
A
I made signs to my companions, Sir.
Q
What signs did you give?
A
I acted upon our agreement by scratching my head, Sir.
Q
And how did your companions respond to your signal?
A
After scratching my head, my companions approached us and arrested them.
Q
Now, tell us, do you know, in particular, who arrested Sonny Zarraga?
A
Yes, Sir.
Q
Tell us.
A
SPO1 William Manglo and PO3 Wilfredo Luna, Sir.
Q
Can you describe to us the manner by which Sonny Zarraga was arrested
by these police officers?
A
Yes, Sir.
Q
Please tell us.
A
They introduced themselves as NARCOM operatives, Sir.
Q
And after that, what happened?
A
They recovered the money from Sonny Zarraga, Sir.[13]
Q
What happened to the shabu which was handed to you by the accused?
A
It was brought by our office to the crime laboratory, Sir.
Q
Who made the request for its examination?
A
SPO3 Edgar Groyon, Sir.
Q
Earlier, you said that the shabu was handed to you. What did you
do with the shabu?
A
While we were at the area, I handed it to SPO1 William Manglo, Sir.
Q
Tell us, when this shabu was handed to you by the accused, in what
container was it contained?
A
When it was handed to me by Sonny Zarraga it was wrapped in a plastic
and white soft paper, Sir.[14]
It was
accused Zarraga who drove the car and transacted with the poseur-buyer
relative to the sale of shabu. It was also accused Zarraga who
received the buy-money from the poseur-buyer. Aside from bringing
out and handing over the plastic bag to accused Zarraga, the petitioner
merely sat inside the car and had no other participation whatsoever in
the transaction between the accused Zarraga and the poseur-buyer.
There is no evidence that the petitioner knew what was inside the
plastic and soft white paper before and at the time he handed over the
same to his cousin. Indeed, the poseur-buyer did not bother to
ask the petitioner his age because he knew that pushers used young boys
in their transactions for illegal drugs. We quote the testimony
of the poseur-buyer:
ATTY. VERANO:
Q
Did you try to find out if they were friends of your informant?
A
No, Sir.
Q
Did you find out also the age of this Mr. Alvin Yamson?
A
I don’t know the exact age, what I know is that he is a minor, Sir.
Q
Eventually, you find (sic) out how old he is (sic)?
A
I don’t know, Sir.
Q
Mr. Guevarra, may I remind you that, in your affidavit, you stated the
age of the boy?
A
I cannot recall anymore, Sir.
Q
Were you not surprised from just looking at the boy at his age, were
you not surprised that a young boy like that would be in a group
selling drugs?
FISCAL:
It calls for an opinion, Your Honor.
ATTY.
VERANO:
May I ask, Your Honor, if he did not further interrogate why or how
this very young boy (sic) selling 100 grams of shabu.
COURT:
The witness may answer.
WITNESS:
A
No more, Sir, because I know that young boys are being used by
pushers.[15]
Even
on cross-examination, the public prosecutor failed to elicit from the
petitioner facts and circumstances showing his capacity to discern
right from wrong. We quote the questions of the public prosecutor
on cross-examination and the petitioner’s answers thereto:
FISCAL:
Cross, Your Honor. May I proceed.
COURT:
Please proceed.
FISCAL:
Q
Mr. Witness, you started your narration that it started on November 13,
1995 and did I hear it right that you went to Manuela at 5 o’clock in
the afternoon?
WITNESS:
A
Yes, Sir.
Q
Now, when you went to Manuela, you came from Filinvest, Quezon
City? You left Filinvest, Quezon City, at 12 o’clock?
A
No, Sir.
Q
What time did you leave?
A
After lunch, Sir.
Q
Now, on the second day which you claimed that you were in the custody
of the police, you said that at one occasion on that day, you have
(sic) a chance to be with your cousin in a [L]ancer car and it was
inside that [L]ancer car when your cousin saw his own cellular phone on
one of the seats of the car, is that correct?
A
Yes, Sir.
Q
Did your cousin tell you that that was his first opportunity to make a
call to anybody since the day that you were arrested?
A
He did not say anything, he just get (sic) the cellular phone.
Q
Did you come to know the reason how that cellular phone appeared inside
that [L]ancer car?
A
No, Sir.
Q
Now, going back to the first day of your arrest. You said that
you were accosted by a male person at the workshop and then you went
out of Megamall and when you went outside, this man saw the key of the
car dangling at the waist. At whose waist?
A
From my cousin.
Q
And at that time, that person did not have any knowledge where your car
was?
A
No, Sir.
Q
And your cousin told him that your car was parked at the third level
parking area of SM Megamall, is that correct?
A
Yes, Sir.
Q
And at that time, that man did not make any radio call to anybody?
A
No, Sir.
Q
Until the time that you reached the third level parking of Megamall, he
had not made any call?
A
No, Sir.
Q
And yet when you reach (sic) the third level parking of the Megamall,
you claimed that there was already this group which met you?
A
Yes, Sir.
Q
And this group were the policemen who are the companions of the male
person who arrested you?
A
Yes, Sir.
Q
Do you know the reason why they were there at that time?
A
No, Sir.
Q
These people do not know your car?
A
No, Sir.
FISCAL:
No further question, Your Honor.
ATTY.
VERANO:
No re-direct, Your Honor.
COURT:
Q
Mr. Witness, earlier you stated that you are not a drug user nor have
you seen any shabu. In support of your claim, are you willing to
submit yourself to an examination?
WITNESS:
A
Yes, Your Honor.
Q
Are you willing to submit a sample of your urine to this Court?
A
Yes, Sir.
COURT:
The witness is discharged.[16]
The
claim of the OSG that the prosecution was able to prove that the
petitioner conspired with his co-accused to sell shabu to the
poseur-buyer, and thereby proved the capacity of the petitioner to
discern right from wrong, is untenable. Conspiracy is defined as
an agreement between two or more persons to commit a crime and decide
to commit it. Conspiracy presupposes capacity of the parties to
such conspiracy to discern what is right from what is wrong.
Since the prosecution failed to prove that the petitioner acted with
discernment, it cannot thereby be concluded that he conspired with his
co-accused. Indeed, in People vs. Estepano,[17] we held that:
Clearly, the
prosecution did not endeavor to establish Rene’s mental capacity to
fully appreciate the consequences of his unlawful act. Moreover,
its cross-examination of Rene did not, in any way, attempt to show his
discernment. He was merely asked about what he knew of the
incident that transpired on 16 April 1991 and whether he participated
therein. Accordingly, even if he was, indeed, a co-conspirator,
he would still be exempt from criminal liability as the prosecution
failed to rebut the presumption of non-discernment on his part by
virtue of his age. The cross-examination of Rene could have
provided the prosecution a good occasion to extract from him positive
indicators of his capacity to discern. But, in this regard, the
government miserably squandered the opportunity to incriminate him.[18]
IN
LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision
of the Court of Appeals in CA-G.R. CR No. 22289 which affirmed the
Decision of the Regional Trial Court of Calamba, Laguna, Branch 36, is
SET ASIDE. The petitioner is ACQUITTED of the crime charged for
insufficiency of evidence.[19]
No
costs.
SO
ORDERED.
Puno,
J., (Chairman),
Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
[1]
Penned by Associate Justice Juan Q. Enriquez, Jr., with Associate
Justices Bernardo P. Abesamis (retired) and Edgardo F. Sundiam,
concurring.
[2]
Penned by Judge Norberto Y. Geraldez.
[3]
Rollo, p. 22.
[4]
Id. at 83-84.
[5]
Id. at 84-85.
[6]
Id. at 88.
[7]
Id. at 24-25.
[8]
Id. at 8.
[9]
Wharton Criminal Law, Vol. I, p. 74.
[10]
Jarco Marketing Corporation vs. Court of Appeals, 321 SCRA 375 (1999);
Guevarra vs. Almodovar, 169 SCRA 476 (1989).
[11]
Godfrey vs. State, 31 Ala. 323 (1858).
[12]
Adams vs. State, 262 A.2d 60 (1970).
[13]
TSN, 30 July 1996, pp. 7-9.
[14]
Id. at 10.
[15]
Id. at 29.
[16]
TSN, 23 September 1997, pp. 27-29.
[17]
307 SCRA 701 (1999).
[18]
Id. at 712.
[19]
There is no showing in the Rollo whether the petitioner posted bail or
is detained.
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