Demurrer To Evidence

Republic of the Philippines REGIONAL TRIAL COURT Third Judicial Region BRANCH 8 Malolos City, Bulacan PEOPLE OF THE PHILIPPINES -versus-

CRIM. CASES No. For: Violation of Sections 5, Article II of Republic Act No. 9165

RAQUELO CARANGAN y ONARSI, Accused. x------------------------------------x

DEMURRER TO EVIDENCE The Accused, assisted by the Public Attorney‟s Office and unto this Honorable Court, respectfully moves to dismiss the above-entitled actions for insufficiency of evidence. The two (2) sets of information were filed in this Honorable Court, and their respective accusatory portions read: Crim. Case No. 539-M-2007 (For: illegal sale of shabu) That on or about the 3rd day of February, 2007, in the municipality of Calumpit, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there willfully, unlawfully and feloniously sell, trade, deliver, give away, dispatch in transit and transport dangerous drug consisting of one (1) heat-sealed transparent plastic sachet containing methylamphetamine hydrochloride (shabu) weighing 0.031 gram. Contrary to law. Crim. Case No. 540-M-2007 (For: illegal possession of shabu) That on or about the 3rd day of February, 2007, in the municipality of Calumpit, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there willfully, unlawfully and feloniously have in his possession and control dangerous drug consisting of two (2) heat-sealed transparent plastic sachet containing methylamphetamine hydrochloride (shabu) weighing 0.041 and 0.038 gram.

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Contrary to law. The accused pleaded „Not Guilty‟ to the charges. The prosecution presented on trial the testimonies of PO1 Rufino Victoria and PO1 Danilo de Guzman. The testimony of forensic chemist Police Senior Inspector Maria Amelita A. Mendoza was dispensed with by stipulation. STATEMENT OF THE FACTS The facts as indicated in the affidavit of arrest of PO1 Rufino Victoria and PO1 Danilo de Guzman, upon which the prosecution based the indictment of the accused are as follows: On February 3, 2007 at about 2 o‟clock in the afternoon, a confidential informant reported to Police Superintendent Pedro Geronimo Ramos, Chief of the Provincial Drug Enforcement Group (PDEG), about the alleged illegal drug activities of a certain @Rocky, who was willing to sell illegal drugs to the confidential informant in the afternoon of the same date along Brgy. Longos, Calumpit, Bulacan. With the above information, a buy bust team was immediately organized and briefed wherein the confidential informant was designated as the poseur buyer to be accompanied by PO1 Rufino Victoria. A one (1) piece P500 bill was prepared with a dot marking on the forehead of the illustrious picture as the buy bust money. The pre-arranged signal was the removing of the baseball cap of PO1 Rufino Victoria once a drug deal was consummated. Upon arrival at the target area, the confidential informant together with PO1 Rufino Victoria approached the target‟s house while the rest of the team strategically followed at a viewing distance. When the confidential informant and PO1 Rufino Victoria reached the house of @Rocky, they called at the latter who later emerged from the door and joined the confidential informant and PO1 Rufino Victoria outside the house. The confidential informant informed @Rocky that they will buy shabu and introduced PO1 Rufino Victoria as a “tropa”. @Rocky demanded payment afterwhich he brought out from his pocket an embroidered coin purse and took therein a one (1) heat sealed transparent plastic sachet containing white granules believed to be shabu. At this juncture, the rest of the team closed in and the accused was freezed. PO1 Rufino Victoria frisked the accused and seized from him an embroidered coin purse which contained two (2) heat sealed transparent plastic sachets containing white granules suspected to be shabu as well as the P500.00 buy bust money. An inventory receipt of the three (3) heat sealed plastic sachets, small embroidered coin purse, and the one (1) piece P500.00 marked money was prepared. After admission of its offered exhibits, the prosecution rested its case. ISSUE Whether or not the evidence of the prosecution, standing on its own, is sufficient to overcome the presumption of innocence of the accused.

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ARGUMENTS “Buy-bust operations have been proven to be an effective way to flush out illegal transactions that are otherwise conducted covertly and in secrecy. Nevertheless, while buy-bust operations have been recognized as such, it has a significant downside that has not escaped the attention of the framers of the law. It is susceptible to police abuse, the most notorious of which is its use as a tool for extortion. The nature of a buy-bust operation necessitates a stringent application of the procedural safeguards specifically crafted by Congress in R.A. 9165 to counter potential police abuses.”1(italics added) Section 21 of Republic Act No. (R.A.) 9165 delineates the mandatory procedural safeguards that are applicable in cases of buy-bust operations, and one of which is enunciated as follows: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (emphasis added) xxx

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The instant case stemmed from a buy-bust operation, which, under Section 21 of R.A. 9165 as provided above required the conduct of physical inventory and photograph immediately after seizure and confiscation, which must be done in the presence of the aforementioned third party representatives/witnesses. The prosecution has offered in evidence a Certification2 for the purpose of proving the inventory of the seized evidence conducted immediately after the buy-bust operation. Said Certificate indicates one Joseph Robielos, a representative from the media, as the witness to the confiscation and inventory. The defense notes that the inventory conducted by the apprehending team fell short of the “required witnesses” under Section 21 of R.A. 9165. On the face of said Certification, it is patent that the confiscation and inventory were not witnessed by a representative/counsel of the accused, a representative from the DOJ and any elected public official. Further, records show that the apprehending team did not also comply with the “photograph requirement”, as no photographs were ever offered and submitted by the prosecution as part of its evidence. While the prosecution may argue that the apprehending team is presumed to have performed their duties regularly especially that there was no indication that the arresting officers were impelled by improper motive when they testified against the accused, and that any failure to conform to 1

People v. Joel Ancheta et al., G.R. No. 197371, 13 June 2012, citing People v. Umipang, G.R. No.190321, 25 April 2012 2 Exhs. “D” to “D-2”

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the procedure laid down in Section 21 of R.A. 9165 would not cause the invalidity of the buy-bust operation and the inadmissibility of the confiscated items so long as the integrity and the evidentiary value of the items seized are preserved, the Supreme Court held in the case of People v. Sammy Umipang3 that courts must still thoroughly evaluate and differentiate those errors that constitute a simple procedural lapse from those that amount to a gross, systematic, or deliberate disregard of the safeguards drawn by the law. In the same case, Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. 9165 has been elucidated as consisting a saving clause in the procedures outlined under Section 21(1) of R.A. 9165 and under which the procedural aspects may be relaxed. Below is Section 21(a) of the IRR of R.A. 9165: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items; (emphasis and underscoring added)

The above saving clause applies only where the prosecution recognized the procedural lapses, and thereafter explained the cited justifiable grounds after which the prosecution must show that the integrity and evidentiary value of the evidence seized have been preserved.4 To repeat, noncompliance with the required procedure will not necessarily result in the acquittal of the accused if: (1) the noncompliance is on justifiable grounds; and (2) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team.5 The records of the instant case are bereft of any indication that the prosecution has recognized the procedural lapses in the conduct of the buybust operation. In fact, it was only on the re-direct examination of prosecution witness PO1 Rufino Victoria that the prosecution attempted to justify the procedural lapses. A perusal of the records shows as follows:

3

G.R. No.190321, 25 April 2012 People v. Garcia, G.R. No. 173480, 25 February 2009 5 People v. De la Cruz, G.R. No. 177222, 29 October 2008 4

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“Q: Mr. Witness, you admitted that your operation did not pass through barangay coordination? Can you tell us why? A: Because before we left the place of Rocky, we asked the neighbors where the barangay hall was and the neighbors told us that the barangay hall was far from the place where Rocky resided; they also said that very seldom that the barangay officials would go to the barangay hall, sir. Q: I also noticed that you failed to take photographs. Why is that, Mr. Witness? A: We had no camera at that time when we conducted the operation, but I remember there was a picture taking in the office, sir.”6

Based on the above, the defense respectfully believes that the reasons of the apprehending team for not complying with the procedural safeguards under Section 21(1) of R.A. 9165 are flimsy excuses and are far from justifiable. A mere statement that pictures were taken, where said pictures were not even presented and submitted in evidence, is unmeritorious. Records also show that no attempt to contact a representative from the DOJ and an elected public official was made. There was thus no genuine and sufficient effort on the part of the apprehending team to comply with the procedures. Neither did the prosecution provide an account or explanation on how the apprehending team preserved the integrity of the items seized vis-a-vis the lapses in the conduct of the buy-bust operation. Moreover, the defense further respectfully stands that the aforesaid lapses were not simple procedural lapses. These are gross, systematic and deliberate disregard of the procedural safeguards prescribed by law. It is elucidated in the case of People v. Sammy Umipang that despite the presumption of regularity in the performance of the official duties of law enforcers, it bears stressing that the step-by-step procedure outlined under R.A. 9165 is a matter of substantive law, which cannot be simply brushed aside as a simple procedural technicality. The provisions were crafted by Congress as safety precautions to address potential police abuses, especially considering that the penalty imposed may be life imprisonment. When there is gross disregard of the procedural safeguards prescribed in the substantive law, serious uncertainty is generated about the identity of the seized items that the prosecution presented in evidence. This uncertainty cannot be remedied by simply invoking the presumption of regularity in the performance of official duties, for a gross, systematic, or deliberate disregard of the procedural safeguards effectively produces an irregularity in the performance of official duties. As a result, the prosecution is deemed to have failed to fully establish the elements of the crime charged, creating reasonable doubt on the criminal liability of the accused.7

6

TSN, November 7, 2008, pages 26-27 People v. Sammy Umipang, G.R. No.190321, 25 April 2012, citing People v. Garcia, G.R. No. 173480, 25 February 2009 7

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PRAYER

WHEREFORE, premises considered, it is respectfully prayed of the Honorable Court to dismiss the above-entitled action for insufficiency of evidence against the accused. Respectfully submitted. Malolos City, Bulacan. August 6, 2012. PUBLIC ATTORNEY’S OFFICE 2/F New Hall of Justice Provincial Capitol Compound Malolos City, Bulacan

Counsel for the Accused Assisted by:

DYANN O. CASTILLO Public Attorney I Roll No. 57888 IBP No. 873508;12/29/2011 MCLE Exempt (Admitted 2010) Noted by:

HENRY M. FRANCISCO Public Attorney IV/ OIC Roll No. 48655 IBP Lifetime Roll No. 09533 O.R. No. 847308 (January 07, 2011) MCLE Compliance No. IV-0006507 (June 26, 2012) The Branch Clerk of Court RTC-Bulacan, Branch 8 Malolos City, Bulacan Greetings! Please submit this Demurrer to Evidence for the consideration of the Honorable Court promptly upon receipt hereof. Dyann O. Castillo

cc: FISCAL CATHERINE E. RUTOR-REYES Asst. Provincial Prosecutor OFFICE OF THE PROVINCIAL PROSECUTOR Provincial Capitol Compound Malolos City, Bulacan