RA 9165 spl summary.docx

July 24, 2017 | Author: Ray Lambert Menchavez | Category: Drug Test, Possession (Law), Conspiracy (Criminal), Crimes, Crime & Justice
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RA 9165 Buy-bust Operation (Sec 5) ... We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused’s predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement. (People vs De Guzman, G.R. No. 151205) Elements (Sec 5) The elements necessary for the prosecution of illegal sale of drugs are (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. (People vs Del Monte, G.R. No. 179940) Elements (Sec 11) The elements necessary for the prosecution of illegal possession of dangerous drugs are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.[19] Elucidating on the nature of this offense, the Court in People v. Tira wrote: x x x This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another. (People vs Gutierrez, G.R. No. 177777) Actual vs. Constructive Possession Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exits when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another. (People vs Huang Zhen Hua, G.R. No. 139301) Intent to possess Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would not exonerate the accused. Such fact of possession may be proved by direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug. Since knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation. (People vs Huang Zhen Hua, G.R. No. 139301) Presumption of intent to possess In the case at bar, appellant was caught in actual possession of a prohibited drug which he could not show was duly authorized by law. Having been caught in flagrante delicto, there is a prima facie evidence of animus possidendi on appellant’s part. As held by this Court in U.S. v. Bandoc, the finding of a dangerous drug in the house or within the premises of the house of the accused is prima facie evidence of knowledge or animus possidendi and is enough to convict in the absence of a satisfactory explanation. (People vs Danila Cruz, G.R. No 185381) Bondad vs. People (Sec 21) IN FINE, as the failure to comply with the aforesaid requirements of the law compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against appellant, his acquittal is in order. (Bondad vs People, G.R. No 173804) Preservation of Integrity of Seized Items It is very clear from the language of the law that there are exceptions to the requirements. Therefore, contrary to appellant’s assertions, Sec. 21 need not be followed with pedantic rigor. It has been settled that non-compliance with Sec. 21 does not render an accused’s arrest illegal or the items seized/confiscated from the accused inadmissible. What is essential is "the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused." (Danilo Cruz case) * Follow Sec 21 to preserve the integrity of the items Chain of Custody As held by the Court in Malillin v. People, the testimonies of all persons who handled the specimen are important to establish the chain of custody. Thus, the prosecution offered the testimony of PO3 Arago, the police officer who first handled the dangerous drug. The testimony of P/SInsp. Fermindoza, who conducted the examination on the dangerous drug, was, however, dispensed with after the public prosecutor and the defense counsel stipulated that the specimens submitted tested positive for methamphetamine hydrochloride and that the said specimens were regularly examined by the said witness. (Danilo Cruz case) People vs Marcelino Here, the chain of custody was established through the following links: (1) SPO1 Dela Cruz marked the seized sachet with "MDC-1" for the sachet that was the subject of the buy-bust, and "MDC-2" for the sachet found on accused-appellant’s person; (2) a request for laboratory examination of the seized items "MDC-1" and "MDC-2" was signed by Police Senior Inspector Arthur Felix Asis; (3) the request and the marked items seized were received by the Bulacan Provincial Crime Laboratory; (4) Chemistry Report No. D-628-02 confirmed that the marked items seized from accused-appellant were shabu; and (5) the marked items were offered in evidence as Exhibits "C-1" and "C-2." (People vs Marcelino, G.R. No 189278) SJS vs Dangerous Drug Board & PDEA SEC. 36. Authorized Drug Testing.—Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2)

testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing: xxxx (c) Students of secondary and tertiary schools.—Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school’s student handbook and with notice to the parents, undergo a random drug testing x x x; (d) Officers and employees of public and private offices.—Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company’s work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; xxxx (f) All persons charged before the prosecutor’s office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test; (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. (SJS vs Dangerous Drug Board & PDEA, G.R. No 157870) *SJS questioned the constitutionality C-G of Sec 36 Students – Constitutional Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well-being of the people, particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, ―[d]eterring drug use by our Nation’s schoolchildren is as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs‖; the necessity for the State to act is magnified by the fact that the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty. Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students. (SJS case) Employees in the Private Sector – Constitutional Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. (SJS case) Government official & Employees – Constitutional Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency. (SJS case) Persons Charged (6 years & 1 day) – Unconstitutional To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons’ right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. (SJS case) Candidates for Public Office – amendment to the Constitution (unconstitutional) Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug-free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non-compliance with the drug-testing requirement. It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non-compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug-testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever. (SJS case) RA 9262 Conspiracy (in-laws) *offender – ANY person, not limited to the man/husband With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be applied suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the RPC shall be supplementary to said law. Thus, general provisions of the RPC, which by their nature, are necessarily applicable, may be applied suppletorily. Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals. (Tan vs Tan, G.R. No 168852) Harassment (Elements)

The above provisions, taken together, indicate that the elements of the crime of violence against women through harassment are: 1. The offender has or had a sexual or dating relationship with the offended woman; 2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and 3. The harassment alarms or causes substantial emotional or psychological distress to her. (Ang vs CA, G.R. No 182835) Dating and Sexual Relations Clearly, the law itself distinguishes a sexual relationship from a dating relationship. Indeed, Section 3(e) above defines ―dating relationship‖ while Section 3(f) defines ―sexual relations.‖ The latter ―refers to a single sexual act which may or may not result in the bearing of a common child.‖ The dating relationship that the law contemplates can, therefore, exist even without a sexual intercourse taking place between those involved. (Ang case) Away-bati Relationship Rustan also claims that since the relationship between Irish and him was of the ―on-and-off‖ variety (away-bati), their romance cannot be regarded as having developed ―over time and on a continuing basis.‖ But the two of them were romantically involved, as Rustan himself admits, from October to December of 2003. That would be time enough for nurturing a relationship of mutual trust and love. An ―away-bati‖ or a fight-and-kiss thing between two lovers is a common occurrence. Their taking place does not mean that the romantic relation between the two should be deemed broken up during periods of misunderstanding. Explaining what ―away-bati‖ meant, Irish explained that at times, when she could not reply to Rustan’s messages, he would get angry at her. That was all. Indeed, she characterized their three-month romantic relation as continuous. RA 7610 Olivares vs CA, G.R. No 163866 The elements of sexual abuse under Section 5, Article III of R.A. 7610 are as follows: 1. 2. 3.

The accused commits the act of sexual intercourse or lascivious conduct. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. The child, whether male or female, is below 18 years of age.

Sec 32, Art III, of the IRR of RA 7610 defines lascivious conduct as: [T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person. Child subjected to other Sexual Abuse Furthermore, it is inconsequential that the sexual abuse occurred only once. Not limited to Prostitution As expressly provided in Section 3 (b) of R.A. 7610, the abuse may be habitual or not. It must be observed that Article III of R.A. 7610 is captioned as ―Child Prostitution and Other Sexual Abuse‖ because Congress really intended to cover a situation where the minor may have been coerced or intimidated into lascivious conduct, not necessarily for money or profit. The law covers not only child prostitution but also other forms of sexual abuse. Amployo vs People, G.R. No 157718 Thus, pursuant to the foregoing provision, before an accused can be convicted of child abuse through lascivious conduct on a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of Rep. Act No. 7610. *Elements of acts of lasciviousness in RA 77610 and Art 336 of RPC – prove both sets of elements People vs Olayon, G.R. No 171863 Consensual sexual intercourse or even acts of lasciviousness with a minor who is 12 years old or older could constitute a violation of Section 5(b) of R.A. No. 7610. For Section 5(b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse. *Sec 5(b) may even cover a case of consensual sexual intercourse Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, promulgated to implement R.A. No. 7610, defines "sexual abuse" as including "the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children." Olayon case For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited in prostitution, to thus fall within the purview of Section 5(b) of R.A. No. 7610, "persuasion, inducement, enticement or coercion" of the child must be present. Sec 10(a) vs Sec 5(b) As Section 10 refers to acts of child abuse prejudicial to the child's development other than child prostitution and other sexual abuse under Section 5, attempt to commit child prostitution, child trafficking, attempt to commit child trafficking, and obscene publications and indecent shows, the Court of Appeals did not commit grave abuse of discretion in holding that "x x x `sexual abuse' [as defined under Section 5] x x x is a completely distinct and separate offense from `child abuse' [as defined under Section 10]." De Ocampo vs Secretary of Justice, G.R. No 147932 Petitioner’s single act of allegedly banging the heads of her students had two distinct victims, namely Ronald and Lorendo. Therefore, petitioner has to face prosecution for cruelty to each victim. For Ronald’s death, petitioner is being charged with homicide under Article 249 of the Revised Penal Code in relation to Section 10(a), Article VI of RA 7610 punishable by reclusion perpetua. However, this does not mean that petitioner is being charged with the distinct offenses of homicide and child abuse for Ronald’s death. On the other hand, for her cruelty to Lorendo, petitioner is being charged with violation of Section 10(a), Article VI of RA 7610 punishable by prision mayor in its minimum period.

De Guzman vs Perez, G.R. No 156013 The law expressly penalizes any person who commits other acts of neglect, child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child’s development including those covered by Article 59 of PD 603 "but not covered by the Revised Penal Code." The "neglect of child" punished under Article 59(4) of PD 603 is also a crime (known as "indifference of parents") penalized under the second paragraph of Article 277 of the Revised Penal Code. Hence, it is excluded from the coverage of RA 7610.

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