PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARTINIANO LABAJO, ACCUSED-APPELLANT.
INGLES, G. T., J.:
The accused-appellant, Martiniano Labajo a.k.a. “Martin”, was charged before the Regional Trial Court of Cebu City, Branch 10 for violation of R.A. 8294, in an Information[2], the accusatory portion of which, states:
“That on or about the 8th day of March 2008, at around 11:30 in the morning, more or less, at Lawaan 3, Talisay City, Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then and there have in his possession and under his control, the following item, to wit:
1. One (1) ca. 357 paltik revolver loaded with four (4) live ammunitions (sic) in the cylinder without first obtaining license or permit therefore from competent authority.
CONTRARY TO LAW.”
On April 25, 2008, the accused-appellant, duly assisted by counsel, was arraigned of the crime charged against him and entered a plea of “not guilty”[3]. The trial court conducted pre-trial[4], then trial on the merits ensued.
Evidence for the prosecution
The prosecution presented PO1 Paul Vaughn Sumiller, SPO4 Ernesto Navales, PO2 Andrew Rellanos and SPO3 Emilecio Agpalza and offered in evidence Exhibits “A” to “K” with submarkings, which were admitted by the trial court in its Order dated September 22, 2009[5].
The evidence of the prosecution would show that on March 4, 2008, a team from the Cebu Provincial Intelligence Branch (PIB), Cebu Provincial Police Office, led by SPO4 Ernesto Navales, applied for the issuance of a search warrant for violation of Republic Act No. 8294, before 1st Vice Executive Judge Ramon G. Codilla, Jr., against Martiniano Labajo a.k.a. “Martin”, residing at Lawaan 3, Talisay City, Cebu[6]. SPO4 Navales submitted the said application, together with the deposition of applicant , deposition of witnesses[7], sketch of the house of the subject[8] and the certification of the FESAGSS, that subject Martiniano Labajo does not appear in the list of approved application to possess firearm[9]. Consequently, Judge Ramon Codilla issued on March 4, 2008, Search Warrant number 00329-08, directing the police officers to search the residence of Martiniano Labajo, located at Brgy. Lawaan 3, Talisay City, for a .357 caliber revolver, shotgun, caliber .45 pistol and ammunition.[10]
On March 8, 2008, a team from PIIB, CPPO, led by SPO4 Ernesto Navales, raided the house of Martiniano Labajo at around 11:30 in the evening, and composed of PO2 Andrew Rellanos, PO1 Paul Vaughn Sumiller, PO1 Michael Magallon, PO3 Benjamin Sebellita and SPO1 Isias Cabuenas. Prior to that, the team had a briefing at their office and thereafter, proceeded to the area. Upon arrival, they saw the accused standing in front of his residence with his live-in partner. They immediately approached the accused and held him. Their team leader, SPO4 Navales showed the search warrant to the accused and read to him the contents thereof. Barangay Tanods Miguel Rabadon, Julie Torres, and Cosme Demecillo arrived (after having been fetched by one of the members of the raiding team). The assigned searcher, PO1 Vaughn Sumiller, PO2 Andrew Rellanos, the recorder, the barangay tanods, the accused and accompanied by his common-law spouse, proceeded to search the ground floor of the two story house, where the rented room of the accused was located.
Sumiller searched the sewing machine, cabinet, the bed, and a backpack that was hanging on the wall. He opened the backpack and found a .357 homemade revolver and five bundles of dried marijuana leaves wrapped in a newspaper. Sumiller handed them to PO1 Michael Magallon, who turned-over these items to the recorder, PO2 Andrew Rellanos. Sumiller continued to search but found no more contraband. Rellenos proceeded to list the confiscated item in an inventory receipt form[11] and thereafter affixed his signature thereto. The barangay tanods who witnessed the search also affixed their signatures. They apprised the accused of his constitutional rights and took photographs of the confiscated items and then brought the accused to the Talisay Police Station. The team leader caused the entry of the raid and arrest of the accused on the police blotter, and marked the confiscated items. They also turned over the accused to the Talisay City Jail, while the confiscated marijuana leaves were forwarded to the PNP Regional Crime Laboratory for laboratory examination.
The prosecution likewise presented in court SPO3 Emilecio Agpalza, who brought with him a certification from FESAGSS that accused is not included in the list of approved firearms holder.[12] In open court, the witnesses identified that prosecution documents which were marked exhibits. PO2 Rellanos, the recorder of the raiding team, identified the .357 caliber revolver and the four live ammunition.[13]
Evidence for the defense
The accused-appellant testified that he is a driver residing at Lawaan 3, Talisay City, Cebu. On March 8, 2008, at around 11:30 in the morning, he was outside his house repairing his motorcycle when several persons dressed in civilian clothes arrived and proceeded directly to the second floor of the house. After several minutes, these men went down and proceeded to enter his rented room.
Accused-appellant testified that he tried to stop them since they were checking the things which his wife used for sewing, but two persons held him at his back. They let him sit at his motorcycle, while two persons entered his rented room. The latter later came out of the house and asked for his name. When he told them his name, accused-appellant testified, the two men informed him that they have a search warrant, but never showed him a copy when accused-appellant asked that the warrant be shown to him.
Accused-appellant was then brought to the Talisay City Jail and placed inside a cell. He declared that although he tried to complain, he could not do anything. He added that the policeman showed the confiscated items taken allegedly from his room. In fact, what the policemen were testifying before this Court were all false.[14]
On cross-examination, accused-appellant admitted that there were several persons who were renting or occupying the room at the second floor. While he was fixing his motorcycle about eight (8) meters from his room, two men went up to the second floor and then went down. These men then entered their room and checked on the rugs and the things inside, so he shouted at them. Suddenly, two men appeared and held him. He turned to complain why he was prevented from entering his room, but was told to wait for the arrival of the barangay tanods. He is not familiar with firearms, but he had seen a revolver.[15]
Ruling of the RTC
The trial court found the prosecution’s version of what transpired on March 8, 2008 leading to accused-appellant’s arrest more credible than the accused-appellant’s protestations that he was framed-up by the police.
The trial court ruled that the testimonies of the prosecution witnesses, that they found a black backpack inside the rented room of the accused-appellant containing one .357 revolver and four (4) live ammunition, to be straightforward, direct, spontaneous and without inconsistencies and therefore credible and entitled to credence and full faith from the court.
The trial court ruled that the accused-appellant’s version that he was just repairing his motorcycle on March 8, 2008 when two men suddenly entered his room and examined the things inside without his consent , cannot be given weight, considering the defense’s failure to present the accused-appellant’s live-in partner or even the barangay tanods to corroborate the claim of the accused.
The trial court further ruled that the prosecution was able to prove the elements of illegal possession of firearms. The accused had been identified by prosecution witnesses to be the same person whom they arrested while they were implementing the search warrant at Lawaan 3, Talisay City, Cebu on March 8, 2008 and the single .357 paltik revolver marked “Power Custom Indep Mo”, with four (4) live ammunition, were identified by the prosecution witnesses. The Chief of FESAGSS, P/Supt. Rey Lyndon T. Lawas has issued a Certification dated February 20, 2008, attesting to the fact that the said individual is not licensed to possess firearm and ammunition of any kind.
Thus, on March 22, 2011, the trial court rendered judgment, the dispositive portion of which, states:
“WHEREFORE, PREMISES CONSIDERED, this Court finds the accused MARTINIANO LABAJO, GUILTY of violating Section 1, Republic Act No. 8294. He is hereby sentenced to suffer the indeterminate term of SIX (6) YEARS and ONE (1) DAY of PRISION MAYOR, as MINIMUM, to SEVEN (7) YEARS and TWO (2) MONTHS as MAXIMUM, and to pay a fine of THIRTY THOUSAND (Php30,000.00) PESOS.
The .357 paltik revolver, with four (4) live ammunitions, and the five (5) bundles of dried marijuana leaves with fruiting tops, are ordered confiscated in favor of the government.
SO ORDERED.”
On April 5, 2011, accused-appellant timely filed a Notice of Appeal[16], which was given due course by the trial court in its Order dated May 5, 2011[17].
The records of this case were transmitted on August 22, 2012[18]. On September 14, 2012, this Court issued a Notice to File Brief[19]. Following several extensions, the appellant was able to file brief on April 8, 2013[20]. The appellee, on the other hand, filed its brief on August 22, 2013[21]. This case was declared submitted for Decision on February 3, 2014[22].
Assignment of Errors
The accused-appellant now comes before this Court and makes this lone assignment of error:
“The court a quo erred in convicting accused-appellant despite the failure of the prosecution to establish his guilt beyond reasonable doubt.”[23]
Argument for the Appellant
Accused-appellant argues that firearm seized by the police is of little or no value owing to the irregularity in the issuance of the search warrant. Appellant argues that the search warrant in this case failed to meet the fifth requisite, that it specifically describes the place to be searched and the things to be seized. A designation or description that points out the place to be searched to the exclusion of all others satisfies the constitutional requirement of definiteness. In this case, appellant points out, the policemen first went to the second floor of the two-story house before going down to the room on the first floor that accused-appellant was renting. In other words, the police officers who applied for and implemented the search warrant did not know in which room the accused actually resided.
During the implementation of the search warrant, the prosecution witnesses testified that the raiding team also allegedly found five bundles of dried marijuana leaves wrapped in a newspaper together with the .357 homemade revolver. Therefore, accused-appellant argues, pursuant to Section 1 of R.A. 8294, this case for illegal possession of firearms should never have been filed since the accused-appellant also committed another crime which is possession of illegal drugs.
Argument for the People
The appellee, on the other hand, argues that the prosecution was able to prove all the elements of the crime of illegal possession of firearms, to wit: when the holder thereof 1) possesses a firearm or a part thereof; and 2) lacks authority or license to possess the firearm. The testimonies of the prosecution witnesses, coupled with the object evidence, proved beyond reasonable doubt the existence of the firearm and the ammunition, which were all in the possession of the appellant. Moreover, the prosecution was able to present in evidence the certification issued by the FESAGSS which stated that the appellant is not included in the list of approved applications for possession of firearms and ammunition of any kind, which proves that appellant had no authority to possess the revolver and ammunition found in his room.
Finally, the appellee argues that the accused-appellant cannot assail the validity of the search warrant for the first time on appeal. What appellant should have done was to move to quash the search warrant, which the accused-appellant failed to do. Moreover, the accused-appellant failed to object to the admissibility of the prosecution’s evidence when the same was offered before the trial court. Hence, objections to the legality of the search warrant and to the admissibility of the evidence obtained pursuant to such search warrant are deemed waived when not raised during the trial of the case.
Ruling of the Court
After a careful review of the records of this case, this Court finds this appeal to be without merit.
To convict an accused for illegal possession of firearms and explosives under P.D. 1866, as amended by R.A. 8294, two (2) essential elements must be indubitably established: (a) the existence of the subject firearm ammunition or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused has no license or permit to own or possess the firearm, ammunition or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive. In this case, the prosecution established possession by presenting the testimonies of PO1 Paul Vaughn Sumiller, SPO4 Ernesto Navales and PO2 Andrew Rellanos who testified that on the evening of March 8, 2008, a team from PIIB, CPPO, led by SPO4 Ernesto Navales, raided the house of Martiniano Labajo at around 11:30 in the evening pursuant to a Search Warrant issued by Judge Ramon G. Codilla of RTC Cebu City Branch 19. Upon arrival at the house of accused-appellant, the officers who implemented the search warrant saw the accused-appellant standing in front of his residence with his live-in partner. They immediately approached the accused and held him. Barangay Tanods Miguel Rabadon, Julie Torres, and Cosme Demecillo, after having been fetched by one of the members of the raiding team, arrived at the scene and witnessed the search. The assigned searcher, PO1 Vaughn Sumiller, PO2 Andrew Rellanos, the recorder, the barangay tanods, the accused and accompanied by his common-law spouse, proceeded to search the ground floor of the two story house, where the rented room of the accused was located. Sumiller searched the sewing machine, cabinet, the bed, and a backpack that was hanging on the wall. He opened the backpack and found a .357 homemade revolver and five bundles of dried marijuana leaves wrapped in a newspaper. Sumiller handed them to PO1 Michael Magallon, who turned-over these items to the recorder, PO2 Andrew Rellanos. Sumiller continued to search but found no more contraband. Rellanos proceeded to list the confiscated item in an inventory receipt form[24] and thereafter affixed his signature thereto. The barangay tanods who witnessed the search also affixed their signatures. PO2 Rellanos, the recorder of the raiding team, identified the .357 caliber revolver and the four live ammunition.[25]
The foregoing clearly established the element of possession for what the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one’s control and management.
In order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent. This was established in the case at bar with the presentation of a certification from FESAGSS that accused-appellant is not included in the list of approved firearms holder.[26]
The trial court was correct in rejecting the accused-appellant’s defense of “frame-up”. Frame-up, like alibi, is generally viewed with caution by the Court because it is easy to contrive and difficult to disprove[27]. In this case, the accused-appellant’s so-called frame-up was virtually pure allegation bereft of credible proof. The narration of the police officers who implemented the search warrant, was found after trial as the credible version of what transpired on the evening of March 8, 2008 when the search warrant was served upon the accused-appellant, especially since no proof was proffered by the accused-appellant of the police officers’ alleged ill motive. Stated otherwise, the narration of the incident by law enforcers, buttressed by the presumption that they have regularly performed their duties in the absence of convincing proof to the contrary, must be given weight.[28]
The accused-appellant’s belated protestations regarding the propriety of the issuance of the search warrant by Judge Ramon G. Codilla of RTC of Cebu City Branch 19 deserve scant attention from this Court. The records of this case reveal that accused-appellant neither moved for the quashal of the said warrant nor objected to the admissibility of the .357 caliber revolver and the four live ammunition on the ground that the search warrant was improperly issued[29] even though these remedy and course of action were available to him during the pendency of this case in the court a quo.
It is a principle long established by jurisprudence that a party cannot change his theory on appeal nor raise in the appellate court any question of law or of fact that was not raised in the court below or which was not within the issue raised by the parties in their pleadings.[30] In a long line of cases, the Supreme Court has consistently held that points of law, theories, issues and arguments not adequately brought to the attention of the trial court ordinarily will not be considered by a reviewing court as they cannot be raised for the first time on appeal because this would be offensive to the basic rules of fair play, justice and due process.[31]
Likewise, the accused-appellant’s contention that he cannot be indicted for the crime of illegal possession of firearms since, also found in his possession during the implementation of the search warrant were five bundles of marijuana leaves, a violation of R.A. 9165 or the Dangerous Drugs Act, is also bereft of merit.
As ruled by the Supreme Court in Angel Celino, Sr. vs. Court of Appeals, et. al.[32], when the other offense involved is one of those enumerated under R.A. 8294[33], any information for illegal possession of firearm should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide, or absorbed as an element of rebellion, insurrection, sedition or attempted coup d’etat. Conversely, when the other offense involved is not one of those enumerated under R.A. 8294, then the separate case for illegal possession of firearm should continue to be prosecuted.
Finally, under Republic Act 8294, amending P.D. No. 1866, the penalty for illegal possession of firearms classified as high powered, which includes those which are lesser calibered firearms but considered powerful such as caliber .357, is prision mayor minimum and a fine of P30,000.00. The trial court imposed the following penalty, to wit:
“Xxx He is hereby sentenced to suffer the indeterminate term of SIX (6) YEARS and ONE (1) DAY of PRISION MAYOR, as MINIMUM, to SEVEN (7) YEARS and TWO (2) MONTHS as MAXIMUM, and to pay a fine of THIRTY THOUSAND (Php30,000.00) PESOS.
X x x.”
Pursuant to the second paragraph of Section 1 of R.A. 8294, the same must be modified to an indeterminate prison term of 6 years of prision correccional maximum, as minimum, to 7 years and 4 months of prision mayor minimum, as maximum.
WHEREFORE, the appeal is hereby DENIED. The Decision of the Regional Trial Court of Cebu City Branch 10 in Criminal Case No. CBU-82659 is hereby AFFIRMED with MODIFICATION on the penalty imposed to an indeterminate prison term of 6 years of prision correccional maximum, as minimum, to 7 years and 4 months of prision mayor minimum, as maximum, and to pay a fine of Thirty Thousand (P30,000.00) Pesos.
SO ORDERED.
Maxino, P.A., and Francisco, R.C., JJ., concur.
[1] Penned by Hon. Soliver C. Peras, Presiding Judge
[2] Information, pp. 1-2, original record
[3] Order, page 27, original record.
[4] Pre-Trial Order, pp. 28-29, original record.
[5] Order, page 105, original record.
[6] Exhibit “E”, page 10, original record.
[7] Exhibit “F”, page 11, ibid.
[8] Exhibit “G”, page 12, original record.
[9] Exhibit “I”, page 13, original record.
[10] Exhibit “H”, page 14, original record.
[11] Exhibit “C”, Inventory Receipt, page 8, ibid.
[12] Exhibit “H”, page 10, ibid.
[13] Exhibit “G”, page 12, original record.
[14] TSN, October 5, 2010, pp. 213-216, original record.
[15] TSN, October 26, 2010, pp. 217-221, ibid.
[16] Notice of Appeal, page 237, original record.
[17] Order, page 239, original record.
[18] See page 3, rollo.
[19] NTFB, page 34, rollo.
[20] Appellant’s Brief, pp. 43-52, rollo.
[21] Appellee’s Brief, pp. 72-81, rollo.
[22] Resolution, page 83, rollo.
[23] Page 45, rollo.
[24] Exhibit “C”, Inventory Receipt, page 8, ibid.
[25] Exhibit “G”, page 12, original record.
[26] Exhibit “H”, page 10, ibid.
[27] People vs. Mamaril, G.R. No. 171980, October 6, 2010.
[28] Remedial Law, Revised Rules on Evidence, Oscar M. Herrera, 1999 Edition, p. 82; People v. Lopez, G.R. No. 71875, Jan 25, 1988; People v. Mauyao, G.R. No. 84525, 6 April 1992, 207 SCRA 732, 738.
[29] See Comments/Objections to Prosecution’s Formal Offer of Exhibits, pp. 102-103.
[30] Sari Sari Group of Companies, Inc. v. Piglas Kamao (Sari Sari Chapter), G.R. No. 164624, 11 August 2008, 561 SCRA 569, 589.
[31] Philippine Commercial and International Bank v. Custodio, G.R. No. 173207, 14 February 2008, 545 SCRA 367, 380; Heirs of Cesar Marasigan v. Marasigan, G.R. No. 156078, 14 March 2008, 548 SCRA 409, 431-432; Eastern Assurance and Surety Corporation v. Con-Field Construction and Development Corporation, G.R. No. 159731, 22 April 2008, 552 SCRA 271, 279-280.
[32] G.R. No. 170562, June 28, 2007.
[33] Republic Act No. 8294, June 6, 1997 Section 1. Sec. 1 Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:
“Sec. 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or ammunition. – The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.
“The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.
“If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.
“If the violation of this Sec. is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d’etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d’etat.
“The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.
“The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.”