Comprehensive Firearms - Full Text Cases

EN BANC
[A.M. No. MTJ-16-1886. July 25, 2017.]

(Formerly OCA IPI No. 16-2869-MTJ)
ANONYMOUS COMPLAINT , complainant, vs. PRESIDING JUDGE EXEQUIL L. DAGALA,

MUNICIPAL CIRCUIT TRIAL COURT, DAPA-SOCORRO, DAPA, SURIGAO DEL NORTE ,
respondent.
DECISION
PER CURIAM : p
This administrative case arose from an anonymous letter-complaint 1 led against Judge Exequil L.
Dagala (Judge Dagala), presiding judge, Municipal Circuit Trial Court, Dapa-Socorro, Dapa, Surigao Del
Norte, led before the O ce of the Ombudsman and indorsed to the O ce of the Court Administrator
(OCA) for appropriate action. HTcADC
In a letter-complaint dated September 30, 2015, an unnamed resident of San Isidro, Siargo Island,
Surigao Del Norte, wrote to report, among others, an altercation involving his neighbors and Judge Dagala.
According to the unnamed complainant, on September 29, 2015, he was in his hut when he witnessed an
argument between his neighbors and Judge Dagala over the ownership of his neighbor's lot and the trees
planted thereon (September 29 incident). There, he saw Judge Dagala walking back and forth, shouting
invectives at the lot's occupants and brandishing an M-16 armalite ri e to intimidate them. 2 He further
claims that while police o cers were at the scene, they did nothing to pacify the situation. Complainant
alleged that no inquiries were made as to the legality of the logging activities being undertaken at Judge
Dagala's apparent behest nor his authority to carry a high-powered rearm. According to the complainant,
while his neighbors were able to take photos and make a video recording of the incident, they were too
afraid to le a complaint against Judge Dagala and instead wanted to arrange for a con dential transmittal
of their evidence to the O ce of the Ombudsman. The complainant also recounted rumors of Judge
Dagala's involvement in illicit activities, namely: illegal drugs, illegal shing, illegal gambling, illegal logging,
maintaining a private army, owning high-powered firearms and having several mistresses. 3
The Office of the Ombudsman indorsed the letter-complaint to the OCA for appropriate action. 4 The
OCA, in turn, directed Executive Judge Victor A. Canoy (Judge Canoy) of the Regional Trial Court of Surigao
City, Surigao Del Norte, to conduct a discreet investigation. 5
In his report, Judge Canoy reported that the altercation described in the complaint arose from an
existing boundary dispute among owners of adjacent lots in the area. One of the disputants allegedly sold
the trees planted on the contested lot to Dagala. According to Judge Canoy, the chief of police could not
con rm whether Judge Dagala was armed with a high-powered weapon at the time but that the incident
was subject of an ongoing police investigation. He concluded, however, that unless the anonymous
complainant comes forward and substantiates his allegations, the complaint should be dismissed. 6
On November 13, 2015, the OCA also requested the National Bureau of Investigation (NBI) to
conduct further discreet investigation. 7 The investigation yielded the following ndings, among others: (1)
Judge Dagala is legally married to "A," on July 18, 2006, in Del Carmen, Surigao del Norte; (2) they have no
children; (3) Judge Dagala sired children with three different women; (4) these children were born on
October 13, 2000, March 5, 2007, and March 24, 2008, respectively; (5) in 2008, Judge Dagala and "A"
agreed to live separately; (6) "A" is currently working in the City Treasury O ce and receiving P10,000.00
as monthly support from him; (7) "B," the mother of Judge Dagala's youngest child, appeared before the
Department of Environment and Natural Resources (DENR) relative to certain hardwood furniture
con scated by the government; (8) Sergio Tiu Commendador 8 (Commendador), a court interpreter in
Judge Dagala's court, was arrested during a recent buy-bust operation; (9) Judge Dagala is alleged to be
the owner of Sugba Cockpit in Del Carmen, Surigao del Norte, and thereafter sold the same to one Marites
Borchs 9 (Borchs). 1 0 aScITE
In an Indorsement dated April 25, 2016, the OCA required Judge Dagala to le his comment in
relation to the anonymous letter-complaint as well as the ndings of its preliminary investigation. Attached
to the Indorsement were a copy of the anonymous letter-complaint, a certi cate of marriage between
Judge Dagala and "A," and the certificates of live birth of his alleged children. 1 1
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In his comment, 1 2 Judge Dagala admitted that he was married to "A" but that, due to their constant
ghting, they decided to separate. "A" returned to Surigao City while Judge Dagala stayed in Siargao Island.
1 3 Judge Dagala also admitted, "without any remorse," that he has three children with three different
women. He added that his wife knew about his children and that she has already forgiven and forgotten
him for his unfaithfulness. 1 4 He denied any involvement in illegal logging, asserting that it was "B" who
managed a furniture business. 1 5 He also denies engaging in any illegal drug activity, asserting that the only
connection linking him to the same is Commendador, who simply happened to work as a court interpreter
in his sala. Judge Dagala also admitted to having owned a cockpit but asserts that he had sold it to Borchs
in 2008 to dispel any suspicion that he was involved in illegal gambling. 1 6 CAIHTE
Earlier, however, Judge Dagala submitted a letter 1 7 "irrevocably resigning" his post but this was
rejected by the Court on August 9, 2016 because he was still under investigation. 1 8 On August 19, 2016,
the OCA received a Universal Serial Bus (USB) ash disk by mail from "a concerned citizen" containing a
video recording of the September 29 incident complained of. 1 9
According to the OCA, while Judge Dagala may be "excused" for having sired two children prior to his
marriage, the record is clear that he had his third child with "B" during the subsistence of his marriage with
"A." The OCA found it morally reprehensible for Judge Dagala, a married man, to maintain intimate relations
with a woman other than his spouse. That he has already separated from his wife and that she had forgiven
him for his extramarital affair do not justify his conduct. The OCA asserted that Judge Dagala's act of
successively siring children with different women displays his proclivity to disregard settled norms of
morality. 2 0
The OCA also noted Judge Dagala's failure to disclose that he already had a child in his Personal
Data Sheet (PDS) which he led with the Judicial and Bar Council for his application to the Judiciary in
2006. For the OCA, this omission is a deliberate attempt to mislead. As a former prosecutor, Judge Dagala
knew or ought to know that making false statements in the PDS amounts to dishonesty and falsi cation of
a public document. Hence, his failure to disclose the fact that he fathered a child in his PDS constitutes
dishonesty. 2 1
The OCA also found that Judge Dagala committed gross misconduct for openly carrying a high-
powered rearm during the reported altercation of September 29, 2015. Republic Act No. 10591 2 2 (RA
10591) provides that only small arms may be registered by licensed citizens or juridical entities for
ownership, possession, and concealed entry. The OCA noted that Judge Dagala neither refuted the
allegation that he brandished a high-powered weapon nor questioned the veracity of the video recording of
the September 29, 2015 incident. A certi cation from the Philippine National Police (PNP) Firearms and
Explosives O ce further disclosed that, per their records, Judge Dagala is not a licensed/registered
firearm holder of any kind or caliber. 2 3
I.
a.
The Supreme Court has administrative supervision over all courts and their personnel. 2 4 This
supervision includes the power to discipline members of the Judiciary. Rule 140 of the Rules of Court
outlines the process by which judges and justices of lower courts shall be held to answer for any
administrative liability. A disciplinary case against a judge or justice brought before this Court is an
administrative proceeding. Thus, it is subject to the rules and principles governing administrative
procedures.
Section 1 of Rule 140 states that proceedings for the discipline of judges and justices of lower
courts may be instituted in three ways: by the Supreme Court motu proprio, through a veri ed complaint,
and through an anonymous complaint. A veri ed complaint must be supported by a davits of persons
who have personal knowledge of the facts alleged or by documents which may substantiate the
allegations. An anonymous complaint, on the other hand, should be supported by public records of
indubitable integrity. 2 5
While anonymous complaints should always be treated with great caution, the anonymity of the
complaint does not, in itself, justify its outright dismissal. 2 6 The Court will act on an anonymous complaint
—
x x x provided its allegations can be reliably veri ed and properly substantiated by competent
evidence, like public records of indubitable integrity, "thus needing no corroboration by evidence to be
offered by the complainant, whose identity and integrity could hardly be material where the matter
involved is of public interest," or the declarations by the respondents themselves in reaction to the
allegations, where such declarations are, properly speaking, admissions worthy of consideration for
not being self-serving. 2 7 (Citations omitted.)

Since a disciplinary case is an administrative proceeding, technical rules of procedure and evidence
are not strictly applied and administrative due process cannot be fully equated with due process in its
strict judicial sense. 2 8 Administrative due process essentially means "an opportunity to explain one's side
or an opportunity to seek reconsideration of the action or ruling complained of." 2 9 When the Court acts
motu proprio, this opportunity arises through the ling of a comment upon order of the Court. In a case
where the proceedings are initiated by a complaint, the Rules of Court state that the complaint must state
the acts or omissions constituting a violation of our ethical rules. To our mind, this is the standard of what
su ces as information as to the allegations against a respondent. It is su cient that the acts or
omissions complained of are clearly identified. DETACa
b.
In this case, the OCA's Indorsement informed Judge Dagala: (1) that an anonymous letter-complaint
was led against him; and (2) that it conducted a preliminary investigation "on the matter [anonymous
letter-complaint]." It thereafter informed Judge Dagala of the results of its preliminary investigation, 3 0
attaching copies of the anonymous letter-complaint, the certi cate of marriage 3 1 between "A" and Judge
Dagala, and the birth certi cates 3 2 of his alleged children. Judge Dagala was directed to comment "on the
matter" within ten (10) days from receipt of the Indorsement. 3 3
Plainly, when the OCA referred to the "matter," it meant not only the information that the preliminary
investigation yielded and were stated in the Indorsement, but also the allegations of the anonymous letter-
complaint. In its rst sentence, the OCA de ned "matter" to be the anonymous letter-complaint. The last
sentence of the Indorsement therefore directed Judge Dagala to comment on the "matter," it was using
that word as a defined term. HEITAD
To recall, the anonymous complaint stated that Judge Dagala "carried [an] armalite rearm" during
the September 29 incident and that he "maintained several mistresses." 3 4 The anonymous letter-
complaint also stated that there were pictures and a video recording of Judge Dagala's participation in the
September 29 incident.
Justice Leonen admits, in his Concurring and Dissenting Opinion, that Judge Dagala's act of
brandishing an M-16 armalite ri e and his lack of registration for the rearm would be su ciently proven
with the photographs and video on le. He nevertheless faults the OCA for failing to speci cally require
Judge Dagala to comment on these photographs and videos. We disagree . The duty to disprove the
allegation of the anonymous letter-complaint that he carried a rearm, as supported by photographs and a
video, rested on Judge Dagala. In fact, we note that Judge Dagala never denied the allegation that he
carried an M-16 armalite ri e during the September 29 incident. Under these circumstances, the Court
nds that Judge Dagala was reasonably informed of allegations of fact which, if left uncontroverted or
unexplained, may constitute ground for disciplinary action.
Justice Leonen argues that "immorality as a ground was not properly pleaded." 3 5 Again, the Court
disagrees . The anonymous letter-complaint clearly alleged that Judge Dagala was known for maintaining
"several mistresses." The certi cate of marriage between Judge Dagala and "A" on July 18, 2006 and the
certi cate of live birth of an alleged child born to "B" on March 24, 2008 also clearly allege that Judge
Dagala sired a child not with his wife during the subsistence of his marriage. To the Court's mind, all these
su ciently plead the commission of acts of immorality as to enable Judge Dagala to properly prepare his
defense.
We agree, however, that Judge Dagala was not su ciently warned that he may be charged with
dishonesty in connection with how he accomplished his PDS. His PDS was not mentioned in either the OCA
Indorsement or the anonymous letter-complaint. Penalizing him for a charge he was not reasonably
informed of will violate his right to due process. Nevertheless, considering that this Court here nds Judge
Dagala liable for the separate counts of immorality and grave misconduct, no useful purpose will be served
by remanding the charge of dishonesty to the OCA.
II.
a.
We agree with the ndings of the OCA that Judge Dagala committed acts amounting to gross
misconduct.
There is su cient evidence to hold Judge Dagala accountable for gross misconduct in connection
with the September 29 incident, as recounted in the anonymous complaint. The OCA identi ed Judge
Dagala as the man brandishing an M-16 armalite ri e in the video footage. In his comment and
manifestation, however, Judge Dagala failed to deny or refute the allegation. We emphasize that Judge
Dagala was given su cient notice of this allegation against him because the anonymous letter-complaint
was included in the OCA's Indorsement. Although Judge Dagala was informed of the existence of the
accusation and ought to have understood the implications, he made no efforts to refute the claims against
him. We thus rule that there is substantial evidence before us to prove that Judge Dagala brandished a
high-powered firearm during an altercation in Siargao. aDSIHc
This nding of fact has various consequences. A certi cation issued by the PNP Firearms and
Explosives O ce also disclosed that Judge Dagala is not a licensed/registered rearm holder of any kind
and caliber. Even assuming that he is licensed to own, possess, or carry rearms, he can only carry those
classi ed by law as small arms pursuant to RA 10591 which provides that only small arms may be
registered by licensed citizens or juridical entities for ownership, possession, and concealed carry. Small
arms refer to rearms intended to be, or primarily designed for, individual use or that which is generally
considered to mean a weapon intended to be red from the hand or shoulder, which are not capable of
fully automatic bursts or discharge. An M-16 armalite ri e does not fall within this de nition. Being a light
weapon, only the Armed Forces of the Philippines, PNP, and other law enforcement agencies authorized by
the President in the performance of their duties can lawfully acquire or possess an M-16 armalite ri e. It
ba es us how Judge Dagala came to possess such a high-powered weapon. Worse, he had the audacity
to brandish it in front of the police and other civilians.
In light of these ndings, we concur with the OCA's conclusion that Judge Dagala is guilty of gross
misconduct. Misconduct has been de ned as an intentional wrongdoing or a deliberate violation of a rule
of law or standard of behavior, especially by a government o cial. Misconduct is considered grave where
the elements of corruption, clear intent to violate the law, or agrant disregard of established rules are
present. 3 6
Judge Dagala's actuations, as recorded in the video, are unacceptable for a member of the bench
and should merit a nding of administrative liability. This is without prejudice to any criminal action that
may also be filed against him.
b.
We also agree with the OCA's findings that Judge Dagala is guilty of immorality.
In his Comment, Judge Dagala has admitted "without any remorse" that he "was able to impregnate"
three different women. 3 7 This is an admission that he is the father of "B's" son, who was born on March 24,
2008, 3 8 while his marriage with "A" was subsisting. 3 9 He is listed as the father in the child's certi cate of
live birth. 4 0 Dagala, in an obvious appeal directed to the Court, pleads: [T]o err is human your honors and
to forgive is divine." 4 1 He claims he is separated from his wife, "A," because of "constant ghting in our
married life" and claims that she knew about his children out of wedlock. She did not object because she
understood his desire to have children. "A" has learned to "forgive" and "forget" him because she impliedly
submits to the "notion that we are not really meant for each and for eternity." 4 2
Under the above facts, we nd Judge Dagala guilty of immorality, for siring a child out of wedlock
during the subsistence of his marriage. ATICcS
We have repeatedly said that members of the Judiciary are commanded by law to exhibit the highest
degree of moral certitude and is bound by the highest standards of honesty and integrity. 4 3 In Regir v.
Regir, 4 4 we held:
It is morally reprehensible for a married man or woman to maintain intimate relations with a person
other than his or her spouse. Moreover, immorality is not based alone on illicit sexual intercourse. It
is not con ned to sexual matters, but includes conducts inconsistent with rectitude, or indicative of
corruption, indecency, depravity, and dissoluteness; or is willful, agrant or shameless conduct
showing moral indifference to opinions of respectable members of the community, and an
inconsiderate attitude toward good order and public welfare. 4 5
Immorality is a recognized ground for the discipline of judges and justices under the Rules of Court.
46The New Canon of Judicial Conduct for the Philippine Judiciary requires judges to avoid "impropriety
and the appearance of impropriety in all their activities." 4 7
In Castillo v. Calanog, Jr. 4 8 (Castillo), we laid down the doctrine of no dichotomy of morality .
We explained why judges as public officials are also judged by their private morals:
The Code of Judicial Ethics mandates that the conduct of a judge must be free of a whiff of
impropriety not only with respect to his performance of his judicial duties, but also to his behavior
outside his sala and as a private individual. There is no dichotomy of morality: a public
o cial is also judged by his private morals . The Code dictates that a judge, in order to
promote public con dence in the integrity and impartiality of the judiciary, must behave with
propriety at all times. As we have very recently explained, a judge's o cial life [cannot] simply be
detached or separated from his personal existence. Thus:
Being the subject of constant public scrutiny, a judge should freely and willingly accept
restrictions on conduct that might be viewed as burdensome by the ordinary citizen.
A judge should personify judicial integrity and exemplify honest public service. The
personal behavior of a judge, both in the performance of o cial duties and in private
life should be above suspicion. 4 9
Thus, in Castillo, we dismissed a judge from service for siring a child outside of wedlock and for
engaging in an extramarital affair. The absence of a public and private dichotomy when it comes to the
ethical standards expected of judges and justices has since become an unyielding doctrine as consistently
applied by the Court in subsequent cases. 5 0
Here, the record is clear. The certi cate of live birth of "B's" male child indicates that Judge Dagala is
the father as shown by his signature in the a davit of acknowledgment of paternity. 5 1 The date of birth
(March 24, 2008) is during the subsistence of Judge Dagala's marriage to "A," there being neither proof nor
allegation that said marriage was annulled or voided in the meantime. Judge Dagala himself admits to the
paternity of his son with "B." He does not dispute the entry in the certi cate of live birth attesting to his
paternity. He admits his mistake and merely pleads for the Court's forgiveness. ETHIDa
Justice Leonen opines that even if the liation of the child is proven, this fact alone is insu cient to
prove immorality on the part of Dagala. He suggests that only evidence which would qualify to prove the
commission of an illegal act, e.g., concubinage or adultery under the Revised Penal Code, the Anti-Sexual
Harassment Act of 1995, 5 2 and the Anti-Violence Against Women and Their Children Act of 2004 5 3
(VAWC), will suffice to establish immorality.
Again, we reject this argument.
While we agree with Justice Leonen that the circumstances in this case may not be su cient to
successfully prosecute Judge Dagala for the crime of concubinage, the spirit that moves our criminal law
in penalizing criminal in delity is not the same as the rationale which compels us to sanction acts of
immorality.
The Court has consistently held that absence of criminal liability does not preclude disciplinary
action. 5 4 As in the case of disciplinary action of lawyers, acquittal of criminal charges is not a bar to
administrative proceedings. In Pangan v. Ramos , 5 5 we held that "[t]he standards of the legal profession
are not satis ed by conduct which merely enables one to escape the penalties of criminal law. Moreover,
this Court in disbarment proceedings is acting in an entirely different capacity from that which courts
assume in trying criminal cases." 5 6
Justice Leonen next argues that a complaint for immorality should be commenced only by its
victims, namely, the spouse betrayed, the paramour who has been misled, or the children who have to live
with the parent's scandalous indiscretions. According to Justice Leonen, a third party is not a victim, so
he/she cannot initiate the complaint unless there is a showing that he/she is doing so for the bene t of the
victims. The inability of these victims to press the charges themselves must likewise be pleaded and
proven. 5 7
For the avoidance of doubt, the Court, in the clearest terms, strongly holds otherwise.
Time and again, this Court has reminded judges that their acts of immorality are proscribed and
punished, even if committed in their private life and outside of their salas, because such acts erode the
faith and con dence of the public in the administration of justice and in the integrity and impartiality of the
judiciary. The public's continued faith and con dence in our justice system is no less a victim of the
commission of acts of immorality by a judge. The resulting harm to the justice system vests the State with
the interest to discipline judges who commit acts of immorality, independent of the view or feelings of the
judge's spouse and their children. cSEDTC
For society, judges are the most tangible representation of the Judiciary. Judges, in particular, are
not just magistrates who hear and decide cases; they are immersed in the community and, therefore, in the
best position to either bolster or weaken the judicial system's legitimacy. In Tuvillo v. Laron 5 8 (Tuvillo), we
said:
As the judicial front-liners, judges must behave with propriety at all times as they are the
intermediaries between con icting interests and the embodiments of the people's sense of justice.
These most exacting standards of decorum are demanded from the magistrates in order to promote
public con dence in the integrity and impartiality of the Judiciary. No position is more
demanding as regards moral righteousness and uprightness of any individual than a
seat on the Bench. As the epitome of integrity and justice, a judge's personal behavior,
both in the performance of his o cial duties and in private life should be above
suspicion . For moral integrity is not only a virtue but a necessity in the judiciary. 5 9 (Citations
omitted; emphasis supplied.)
We reiterate what Justice Leonen said in his well-reasoned dissent in Tuvillo, "[a]nyone applying for
the judiciary is expected to have a thorough understanding of community standards and values." 6 0 How a
judge behaves impacts the Judiciary's legitimacy. Society communicates not just through language but
through symbols as well. Judges are symbols of justice. They are symbols not only when they are in the
actual performance of our duties but also when they move through social circles in a community. When a
judge exhibits a willingness to out the accepted standards of society, the Judiciary's legitimacy takes a
hit. There arises a dissonance between the notion that they are symbols of justice and the fact that they do
not act with justice in their own lives. When the Judiciary chooses to dispense justice through a judge who
refuses to respect the fundamental values of a society, it effectively sends out a message that its judges
can tell society to observe the law and excuse themselves from it at the same time. As we held in Leynes v.
Veloso, 6 1 "[a] judge suffers from moral obtuseness or has a weird notion of morality in public o ce when
he labors under the delusion that he can be a judge and at the same time have a mistress in de ance of the
mores and sense of morality of the community." 6 2
We see no cogent reason in law or policy to depart from our time-tested procedure for the discipline
of judges and justices of lower courts which allows complaints to be instituted in three ways: by the Court
motu proprio, through a verified complaint, or through an anonymous complaint. 6 3
Any citizen or member of the public who knows a judge who commits acts of immorality quali es
as, and has the civic duty to be, a complainant or a witness against the errant judge. These persons, usually
members of the community whom the judge serves, have a direct interest in preserving the integrity of the
judicial process and in keeping the faith of the public in the justice system. The harm in icted by the judge
upon the members of his family is distinct from the harm wreaked by an erring judge upon the judicial
system. The family and the State are each imbued with the autonomy to exact their response to acts of
immorality by a rogue judge. The State cannot intrude into the family's autonomy any more than the family
cannot intrude upon the autonomy of the State. AIDSTE
Justice Leonen ominously warns the Court not to be complicit to the "State's over-patronage
through its stereotype of victims." 6 4
The Court cannot agree with this rather constricting view.
First. He appears to proceed from the notion that the State stereotypes all women to be victims
who are weak and cannot address patriarchy by themselves.
Second. This view is based on a faulty presumption that all erring judges are husbands who
victimize their wives. Thus, if the argument is to be pursued, when we discipline judges even in cases where
the wife did not le the complaint, we "over-patronize" women because we believe that they are not
capable of invoking legal remedies on their own and, thus, the Court must step in to protect them. This is
an unfortunately limited view.
The disciplinary procedure adopted by the Court is gender-neutral. The prohibition
against immorality applies to all judges regardless of gender or sexual orientation.
Further, in resolving immorality cases, the Court does not discourage or prevent the spouse and the
children of the erring judge from exercising their autonomy to come before us and express their
sentiments. Nevertheless, we proceed despite their absence because, as we said, administrative
proceedings against judges do not dwell on private injuries in icted by judges on private people.
Administrative proceedings do not exist so that a betrayed spouse can seek redress of his or her
grievance. Administrative proceedings are not a remedy for a judge's betrayal of his or her marital vows.
These proceedings go into the question of whether a judge, by his or her actions and choices, is still t to
dispense justice and encourage the people's faith in the judiciary.
Moreover, we reject the position that proceeding in cases such as this, where the wife does not
bring the action herself, amounts to the "over-patronage" of women because we allegedly feel the need to
hear the case to protect a victim who cannot look out for herself. This position is out of touch with reality.
Women empowerment is an advocacy taken seriously by the Judiciary. We have made consistent
efforts to make our ranks more inclusive to female judges and justices. The Court itself is headed by our
rst-ever female Chief Justice. Similar efforts are being made in other branches of the government. There
are efforts, as well, in our communities to provide equal opportunities for women. The status of women in
our society has improved. We agree with Justice Leonen that there are women in our society who are
perfectly capable of not only protecting themselves from the oppression of the patriarchy but even of
shattering gender glass ceilings. However, this is a very limited view of the plight of women empowerment
in this country. SDAaTC
Violence against women is a serious and prevalent problem in the Philippines. This is, in fact, the
spirit that compelled the passing of the VAWC, which recognizes the need to provide further protection to
women and that violence against them can take many forms.
In 2013, this Court, speaking through Associate Justice Estela M. Perlas-Bernabe, a rmed the
constitutionality of the VAWC. In Garcia v. Drilon, 6 5 we explained:
The unequal power relationship between women and men; the fact that women are more
likely than men to be victims of violence; and the widespread gender bias and prejudice against
women all make for real differences justifying the classification under the law. x x x
xxx xxx xxx
According to the Philippine Commission on Women (the National Machinery for Gender
Equality and Women's Empowerment), violence against women (VAW) is deemed to be closely
linked with the unequal power relationship between women and men otherwise known as
"gender-based violence[."] Societal norms and traditions dictate people to think men are the leaders,
pursuers, providers and take on dominant roles in society while women are nurturers, men's
companions and supporters, and take on subordinate roles in society. This perception leads men to
gaining more power over women. With power comes the need to control to retain that power. And
VAW is a form of men's expression of controlling women to retain power. 6 6 (Emphasis in the
original; citations omitted.)
Statistics from the Philippine National Demographic and Health Survey 2013 6 7 show that one in
every ve women aged 15-49 years old has experienced physical violence. Forty-four percent (44%) of the
married women who participated in this survey and claimed that they have suffered physical violence
revealed that their current husbands or partners are the perpetrators. 6 8 Violence is, however, not only
physical, and in this survey, about 26% of the married women interviewed revealed that they suffered some
form of emotional, physical, and/or sexual violence from their husbands or partners. 6 9
The inequality does not end there.
These same statistics show that almost three in ve married women earn less than their husbands.
Only 10% of women own a house alone, while 19% own a house jointly with someone else. Further, only 18%
of women own land, either alone or co-owned. 7 0
While there are indeed serious efforts to empower women in this country, the foregoing remains to
be our reality. Much work remains to be done. It is the height of insensitivity and a display of a limited view
to insist that when we are perceived to take the cudgels for women, we are over-patronizing them. To even
go as far as to say that the State over-patronizes women by stereotyping them as victims is unacceptable.
The reality — as shown by the Congress' decision to enact the VAWC and the statistics showing the
imbalance of power in this country — is that there are women in this country who are in peril and are in real
need of protection. While it is true that there are certain groups of women who are able to protect
themselves and even to successfully compete in a male-dominated society, this is not the reality for many
women in the Philippines. To say that the State is over-patronizing and stereotyping women just because
some of our women are empowered is, to borrow the words of United States Supreme Court Justice Ruth
Bader Ginsburg, "throwing away your umbrella in a rainstorm because you are not getting wet." 7 0 n We are
not over-patronizing women when we take measures to help them . We are simply doing our part in
the great endeavor of women empowerment. AaCTcI
Finally, we reject the proposal because it will cause the Court to be beset with intractable problems
of proof. It will require the Court to inquire into whether the "victims" are genuinely exercising their
autonomy, an invasive process that will, in turn, intrude into the family's autonomy. To illustrate, a judge
who sires innumerable children outside of wedlock, maintains multiple mistresses, and aunts these
misdeeds, is immunized from the Court's disciplinary authority should the spouse and children choose not
to press charges. Authorizing private attorney generals to act on behalf of the Court to vindicate the
public's interest is no solution. Justice Leonen himself recognizes that violence against women and
children may prevent them from coming forward. Thus, he concedes that third parties may be allowed to
act on behalf of the State provided they can plead and prove that they are acting for the bene t of the
victims, not "as a means to cause more harm on them." 7 1 How can this be shown to the satisfaction of the
Court without resolving, as a triable question of fact, the question of whether the wife and children truly and
freely exercised their individual autonomy? What about the reality of the violence of economic need and
dependence, which arguably prompts far more wives and children into silently accepting the wrong done
them? This is a quagmire the Court is not wont to enter.
It is safer to go back to basics. Simply put, the State does not recognize any sexual autonomy on the
part of judges to have children with persons other than their spouses or to have extramarital affairs. It
would be completely unprincipled for the Court to reward a judge's commission of such grievous a wrong
to the public with an absolution based on the forgiveness of the spouse and child. This is, of course,
assuming we will ever have the ability to ascertain whether their forgiveness ows from the free exercise
of their autonomy. In the case of male judges, such a result will abet the very patriarchy that Justice Leonen
wants the Court to reject. No one is forced to be a judge, just as Justice Leonen pointed out in his
concurring opinion in Tuvillo. 7 3 To add to that, no judge is forced to remain one.
The Judiciary, to maintain its legitimacy, must be able to convince that it makes principled decisions.
74This requires that the Judiciary resolve cases fairly, impartially, and convincingly. Decisions must be
based on a logical interpretation and application of laws. The Judiciary's institutional legitimacy is also
impacted by its members. Members of the Judiciary must act in a way that will encourage con dence
among the people. acEHCD
To be clear, we do not seek to interfere with a judge's relationships. Thus, while we have sanctioned
lawyers, judges, and even justices, who have extramarital affairs, we have refused to do so in cases where
the parties, without any legal impediment, live together without the bene t of marriage. 7 5 We have also
been adamant in holding that a person's homosexuality does not affect his or her moral tness. 7 6
Nevertheless, immorality is a valid ground for sanctioning members of the Judiciary because it (1)
challenges his or her capacity to dispense justice, (2) erodes the faith and con dence of the public in the
administration of justice, and (3) impacts the Judiciary's legitimacy.
Finally, while a disciplinary case for immorality may proceed even without the participation of the
spouse, the children or the alleged paramour, steps must be taken to protect their decision not to air out
their grievances in administrative proceedings before us. As a matter of policy, in cases such as this, the
names of concerned parties who are not before the Court should not be used. Care should be taken so as
not to disclose personal information and circumstances that are not relevant to the resolution of the case.
If necessary, aliases should be used when referring to these parties.
Taking all these into consideration, we nd that Judge Dagala is also guilty of committing acts of
immorality.
III.
Under Section 8 of Rule 140 of the Rules of Court, immorality and gross misconduct each constitute
a serious charge. Section 11 of the same Rule provides that serious charges are punishable by:
1. Dismissal from the service, forfeiture of all or part of the bene ts as the Court may
determine, and disquali cation from reinstatement or appointment to any public o ce,
including government-owned or controlled corporations. Provided, however, that the
forfeiture of benefits shall in no case include accrued leave credits;
2. Suspension from o ce without salary and other bene ts for more than three (3) years
but not exceeding six (6) months; or
3. A fine of more than [P]20,000.00 but not exceeding [P]40,000.00.
We a rm the recommendation of the OCA to impose on Judge Dagala the supreme penalty of
dismissal from the service with forfeiture of retirement benefits, except accrued leave benefits. Because of
the gravity of Judge Dagala's infractions, we also impose on him the penalty of perpetual disquali cation
from reinstatement or appointment to any public o ce, including government owned or controlled
corporations. EcTCAD
Without staking a position on the proper penalty to impose on Judge Dagala on the immorality
charge, Justice Leonen discusses circumstances that may be considered mitigating or aggravating in the
determination of an immorality case. 7 7 We will comment only on one circumstance cited, namely, where
the "marriage does not work." 7 8
The Court unequivocally reminds justices and judges that until the Congress grants absolute divorce,
or unless they have secured a court annulment of their marriage or a judgment of nullity, a failed marriage
does not justify acts of immorality.
Judge Dagala seeks this Court's forgiveness. He claims that he and his wife separated because of
"constant ghting;" that his wife knew of his children with other women but did not interpose any objection
because she knew of his desire to have children; his wife had learned to "forgive and forget" him; and both
have arrived at the "notion that [they] are not really meant for each other and for eternity." 7 9
We understand the undeniable sadness of a failed marriage. We commiserate with Judge Dagala
and his wife, as well as his children, who must live with circumstances far different from what society
recognizes as ideal. We understand the pain of accepting certain stark realities — that some relationships
must come to an end and not even the legal ties of marriage can save them; that some married couples
soon discover that they are not right for each other; that in certain cases, not even the legal bonds of
marriage can ll the void; that sometimes, happiness can be found in nding the strength to get out of a
relationship and begin again. We understand that judges and justices are also human, and are naturally
inclined to search for what is good and what gives meaning, including happy and ful lling relationships. In
this case, we do not seek to ponti cate that there is only one honorable way to live. Judges are free to
choose how to live their lives. Nevertheless, choices are made within particular contexts and in
consideration of duties and obligations that must be honored. More importantly, choices have
consequences . Judge Dagala made his choice. He must now face the repercussions. Thus, as much as
we commiserate with Judge Dagala, we remain a court of law with a mandate to dispense even-handed
justice.
We thus compare the grounds offered by Judge Dagala in mitigation of his wrong to similar pleas
made by judges similarly situated, namely, married judges who sired children outside of wedlock or
engaged in affairs during the subsistence of their marriage. SDHTEC
Only last year, in Tuvillo, the Court rejected a plea in mitigation by a judge. The judge explained that
both he and his mistress were "mature lonely people" whose marriage to their legally wed spouses had
"lessened sheen" and that his mistress brought him a "soul connection, understanding and great company."
Further, his own wife "was distant to him."
I n Re: Complaint of Mrs. Rotilla Marcos, 7 9 n which Justice Leonen also quotes in his dissent in
Tuvillo, we dismissed a judge who publicly carried on a relationship with a woman not his wife. We found
him liable notwithstanding the fact that he had already been physically separated from his wife for three
(3) years. 8 0 .
In Anonymous v. Achas, 8 1 we reprimanded a judge for going out in public with a woman not his wife.
We imposed this penalty notwithstanding the fact that Judge Achas had been estranged from his wife for
the last 26 years. We held that the fact remains that he is still legally married to her. It was not therefore
commendable, proper, or moral for a married judge to be perceived as going out with a woman not his
wife. 8 2
In Resngit-Marquez v. Llamas, Jr. , 8 3 we dismissed a judge upon nding that he had a long standing
relationship with a married woman. We found the judge liable in spite of the fact that both he and his
partner were estranged from their respective husband and wife. Notably, we took cognizance of the
complaint in this case even if neither the estranged husband nor wife of the parties participated in the
proceedings. 8 4
In Perfecto v. Esidera , 8 5 the Court, through Justice Leonen, disciplined a female judge who carried
on a relationship with a man not her husband, even if the judge had never lived with her legal husband and
had long been estranged from him.
The reason for the Court's consistent position is not di cult to discern. The Philippines is a society
that values monogamy in marriages, except as to certain ethnicities and religions where monogamy is not
the norm. Our legal system is replete with laws that enforce monogamy in a marriage and penalize those
who go against it. Save for religions that accept and embrace multiple marriages, bigamy in the Philippines
is a crime. 8 7 In the same vein, our criminal law penalizes adultery 8 8 and concubinage. 8 9
No less than the Constitution emphasizes the value of a marriage as the foundation of the family. 9 0
The Philippines is a legal regime that intensely protects marriages by limiting the grounds for its nullity or
annulment. Until today, we do not have divorce, with the exception provided for in the Code of Muslim
Personal Laws of the Philippines. We only recognize legal separation. There have been calls for allowing
divorce here but no law has been passed so far. Ultimately, we are the branch of government tasked with
interpreting the law. We do not meddle with policies or with the endeavor to have our laws re ect the
developments in our values and morality. It is not our place to ascertain whether our laws on marriage have
failed to adjust to the demands of the times. HSAcaE
For the Judiciary, this is the legal and social context within which we must understand immorality in
connection with extramarital affairs. In penalizing judges for engaging in extramarital affairs, we merely
seek to dis-incentivize judges' propensity to disregard accepted standards of morality because these acts
impact their capacity to properly perform their jobs. These acts affect the judiciary's legitimacy — an
element essential in its role as a branch of government charged with interpreting rules. We value
monogamous marriages and consider them worthy of strict legal protection. A judge who disregards this
fundamental value opens himself or herself up to questions about his or her capacity to act with justice in
his or her own dealings. This affects the people's perception of his or her moral tness. As we said in
Resngit-Marquez v. Llamas, Jr. , a magistrate "cannot judge the conduct of others when his own needs
judgment." 9 1
No one is forced to be a judge. 9 2 The judiciary is an institution reserved for those who, when they
apply for a judicial position, are expected to have a thorough understanding of community standards and
values which impose exacting standards of decorum and strict standards of morality. 9 3 We highlight that
judges are bound to uphold secular, not religious, morality. Thus, the values that a judge must uphold are
those in consonance with the dictates of the conscience of his or her community. Among these community
values is respect for the sanctity of marriage. 9 4 All applicants to the Judiciary must, therefore, decide for
themselves whether the community values that the Court has recognized conform to their own personal
values, lifestyle, or proclivities. All who desire to be part of the Judiciary must rst decide if he or she can
live up to the highest standards of morality expected of judges and justices.
How applicants to the Judiciary will choose to construe the values that this Court upholds is their
choice. Those who have a fervent belief in a God may nd that the values of this Court compel them to live
the lives of the faithful. Those who are predisposed to pursue a strict code of morality may choose to
perceive our values as moral codes, proper and worthy of being adhered to. Those who have the
inclinations to bend the rules or to live outside societal norms may nd that these rules are like
straightjackets — pretentious, unreasonable, or constricting. AScHCD
Whether applicants to the Judiciary will choose to construe these secular strictures as rules that
require them to live the life of a saint, or of a priest, imam, or other religious person, is a purely personal
decision. They are free to choose their own metaphors. But once a lawyer joins the Judiciary, he or she
should abide by the rules. We remind all judges that no position demands greater moral righteousness and
uprightness from its occupant than the judicial o ce. A judge's personal behavior outside the court, not
only while in the performance of his o cial duties, must be beyond reproach, for he is perceived to be the
personification of law and justice. 9 5
WHEREFORE , premises considered, Judge Exequil L. Dagala is hereby found GUILTY of
IMMORALITY and GROSS MISCONDUCT . Accordingly, he is DISMISSED from the service with
FORFEITURE of his retirement and other bene ts except accrued leave credits, and PERPETUALLY
DISQUALIFIED from re-employment in any government agency or instrumentality, including any
government-owned and controlled corporation or government financial institution.
SO ORDERED.
Sereno, C.J., Carpio, Leonardo-de Castro, Peralta, Bersamin, Del Castillo, Mendoza, Perlas-Bernabe,
Jardeleza, Caguioa, Martires, Tijam and Reyes, Jr., JJ., concur.
Velasco, Jr., * J., took no part, prior action in OCA.
Leonen, J., see separate concurring and dissenting opinion.
Separate Opinions
LEONEN , J., concurring and dissenting :
I have no problems concurring in the nding that respondent committed at least two (2) counts of
serious misconduct. Taken together, he should be dismissed from service with forfeiture of all benefits. He
should also be perpetually disqualified for appointment or election to any public office.
The basis of this penalty is clear:
First, he could be shown to have misled the Judicial and Bar Council (JBC) through a Personal Data
Sheet he submitted which did not disclose all the names of his children. 1 This is a breach of the lawyer's
oath not to do falsehood in court. This breach would be su ciently proven by the documents presented in
this case.
Second, respondent brandished his M-16 armalite ri e in order to assert his position regarding a
boundary dispute with a neighbor. 2 I agree that this act showed that he violated Republic Act No. 10591,
which does not allow a judge a permit to carry this kind of high-powered weapon. Also, his act of
brandishing the ri e against a neighbor, at the very least, constituted grave threats or even grave coercion,
which is de ned and punished under the Revised Penal Code. Likewise, the act constituted abuse of his
judicial position.
His act of brandishing a ri e and his lack of registration for the rearm would be su ciently proven
with the photo and video on le. 3 The O ce of the Court Administrator's Report 4 shows that neither
registration papers nor a permit to carry was submitted by the respondent to justify his possession and
carrying of the weapon used. HESIcT
I
However, for future reference, I note some gaps in the procedure followed in this case and the tenor
of the O ce of the Court Administrator's Indorsement 5 for respondent to le his Comment. The
Indorsement did not require respondent judge to comment on his Personal Data Sheet or on the video,
which were used as basis for his coercive acts. The Court Administrator also did not require comment on
whether respondent judge had any kind of firearm or on whether this was registered. 6
The Court Administrator's Indorsement also did not specify the provisions in the Code of Judicial
Conduct which respondent judge was supposed to have violated. He was asked to comment on a number
of acts that were based on rumors and testimonies of unnamed sources. Unless we would require a better
specification of the charges against the judge, we would be party to a gross violation of due process.
The records of this case seem to reveal that the judge had been the subject of shifting offenses. The
Anonymous Complaint 7 focused on the coercive acts of the judge as a result of illegal cutting of trees in a
speci c incident. The report 8 of the Executive Judge focused on general grounds of illegal logging and
participation in illegal drugs. It also mentioned that the police investigation against the judge was still
ongoing. The Memorandum 9 of the National Bureau of Investigation seemed to have highlighted the judge
as having "impregnated three (3) different women" 1 0 and not the judge's incomplete Personal Data Sheet
or his lack of registration for any rearm. It did not report on the incident mentioned in the Anonymous
Complaint.
At the very least, the O ce of the Court Administrator should have issued a more speci c order for
the respondent to comment on, to give him a chance to answer the accusations of dishonesty in his
Personal Data Sheet, his use of and access to a high-powered rearm not owned by him, as well as the
charges of illegal logging, intimidation, grave threats, and coercion. These were, after all, the contents of
the Anonymous Complaint. Due process for our judges, even at the face of ostensible culpability, demands
more specificity in the charges.
However, I agree with the majority that acts of grave misconduct were substantially proven. AcICHD
II
In my view, the evidence to include immorality as a ground for dismissal in this case is insu cient.
Immorality as a ground was not properly pleaded and proved. On this aspect, I dissent from the majority.
This case was initiated after the O ce of the Court Administrator received a transmittal from the
O ce of the Ombudsman on October 14, 2015. 1 1 The Anonymous Complaint dated September 30, 2015
and filed with the Ombudsman of Mindanao reads in its most significant parts as follows:
I am a native of the Municipality of San Isidro, Siargao Island, Surigao del Norte. Although I
am a college graduate but I opted to stay in the peaceful hometown in Siargao Island, tilling my
piece of land to sustain the educational needs of my six children and for our subsistence.
It was in the afternoon of September 29, 2015 when my outlook towards a respected o cial
of the government has changed. Around 1:30 pm of the said date, I rested my in small farm hut, then
I heard a loud noise of a chainsaw. Few minutes later, trees from my adjacent land smashed on the
ground. Due to said disturbance, I went near to the said area to verify the activity. It was much
unexpected that I was able to witness two groups of people arguing themselves on the ownership of
land and the slashed trees. From the other side that I knew was the owner of my adjacent land who
refused their identity to be divulged. What is very intimidating to me was the person of the other
group who is very well known to me as Siargao MCTC Judge Exequil Dagala who walked back and
forth, shouting and with a carried armalite rearm. I also witnessed some policemen of San Isidro
doing nothing to pacify the situation but they talked in favour to Judge Dagala. No arrests of the
illegal loggers to include Judge Dagala who were there supervising the illegal logging activity, no
con scation of chainsaw and the slashed trees and no veri cation as to the authority of Judge
Dagala to bring armalite rearm were made by the police. Several times in the past I heard rumours
that Judge Exequil Dagala is the mastermind of illegal logging, illegal drugs, illegal shing and
illegal gambling in Siargao Island. I just don't pick and value those rumours because the sources are
not credible and I guessed that they only watched some Tagalog movie with portrayed bad judge in
the story. There were also rumours from nearby towns that Siargao MCTC Judge Exequil Dagala
maintained private armed men and owned some high powered rearms, he furthermore maintained
several mistresses. Some of those rumours were accidentally discovered personally be me on that
day of September 29, 2015.
After both sides was advised by the policemen to settle the concern to barangay o ce, I
initiated to talked with my neighbour who was the owner of lot wherein Judge Dagala recently made
illegal logging activity. She then revealed that his son was able to take picture and video of the
misconduct made by Judge Dagal but she was afraid to make a complain. I then encourage her to
do so but she suggested making a secret transmittal of the evidence to the Ombudsman because
she was very afraid of the consequence and she asked my assistance.
In this regard, we are respectfully forwarding the attached email pictures and video of
unimaginable actuation of Judge Exequil Dagala. He led the illegal logging activity in the land he
doesn't own. He intimidated the peaceful loving residents of San Isidro by his carried armalite
rearm. We don't believe that those deeds of Judge Dagala are within the bounds of the law and the
custom of a public official and as a Judge of the court. 1 2 (Grammatical errors in the original)
The photos and video clips were later transmitted to the O ce of the Ombudsman, where the
anonymous complaint was initially filed. 1 3
The complaint was mainly about the illegal logging activity and the use of a rearm by Judge Exequil
Dagala (Judge Dagala). The anonymous letter mentioned rumors about "illegal logging, illegal drugs, illegal
shing and illegal gambling" as well as maintenance of "private armed men and . . . some high powered
rearms." It also mentioned that he "maintained several mistresses." The complainant, however, labelled all
these as rumors, which he or she did not take seriously. Complainant mentioned, "I just don't pick and value
those rumours because the sources are not credible and I guessed that they only watched some Tagalog
movie with portrayed bad judge in the story."
The relationship to Judge Dagala and the motive of the complainant was not apparent in the letter.
The complainant also did not raise the alleged immorality of the judge. If at all, he or she mentioned it only
in passing, qualifying the matter as a rumor. caITAC
On October 12, 2015, acting on the Ombudsman's Indorsement, the O ce of the Court
Administrator directed then Executive Judge Victor A. Canoy (Executive Judge Canoy) of the Regional Trial
Court of Surigao City in Surigao del Norte "to conduct a discreet investigation and submit a report on the
allegations against Judge Dagala." 1 4
Executive Judge Canoy submitted a report to the O ce of the Court Administrator on January 29,
2016. 1 5 The Office of the Court Administrator summarized his findings as follows:
On 29 January 2016, then Executive Judge Canoy submitted a Report (with enclosures) to this
O ce which essentially stated that after an investigation, he found that — a) the complainant was a
certain Luzminda Pacellos Matugas, a teacher from Brgy. Nuevo Campo, San Benito, Surigao del
Norte; b) the cutting of trees took place in Sanglay, Brgy. Pelaez, San Isidro, Surigao del Norte; c) the
"hambabayod trees" involved were claimed by Ms. Matugas, while the adjacent landowner, Nathaniel
Requirme, also claimed the same as his; d) police investigation reveals that the subject trees were
allegedly sold by Requirme to Judge Dagala; hence, it is for this reason that he was present during
the subject incident; e) the Chief of Police could not con rm the allegation that Judge Dagala was
armed at that time; f) the incident is still subject of an ongoing police investigation; and g) the
alleged illegally cut trees were still in the area. Executive Judge Canoy posits that unless Ms.
Matugas comes forward and present evidence to support her allegations, her complaint, as well as
that of the anonymous complainant, will not prosper. 1 6
The report of Executive Judge Canoy noted the ongoing investigation relating to illegal cutting of
trees. It also mentioned that the "Chief of Police could not con rm the allegation that Judge Dagala was
armed at that time." Also, it clearly did not cover substantiation of rumors relating to the alleged immorality
of Judge Dagala. TAIaHE
In the meantime, on November 13, 2015, the O ce of the Court Administrator requested the
National Bureau of Investigation of CARAGA Region XIII to conduct its own discreet investigation on Judge
Dagala. 1 7 It was this report that seemed to introduce details regarding his alleged immorality.
The report dated February 11, 2016 of the agent in charge of the National Bureau of Investigation
substantially reads as follows:
01. This refers to a complaint being transmitted by the O ce of the Court Administrator of
Supreme Court, Manila for discreet investigation and report against MCTC Dapa-Socorro,
Surigao del Norte Judge Exequil L. Dagala for alleged involvement in illegal drugs, illegal
logging and other illegal activities;
02. This case was assigned to the undersigned on December 14, 2015 and come up with the
following findings:
a) Judge Exequil Longos Dagala (Judge Dagala) is a resident of San Jose St., Del Carmen,
Surigao del Norte, Siargao Island, Mindanao;
b) As a result of the Investigation and veri cation conducted from the Philippine Statistics
Authority (PSA), Judge Dagala was legally married to Gilgie Consigo Gersara on July 18,
2006 and this marriage was solemnized at the O ce of the Municipal Mayor of Del
Carmen, Surigao del Norte. However, they have no children in their marriage;
c) Further, Judge Dagala had impregnated three (3) different women respectively describe
as follows:
Name of Date of Gender Name of Document Registry
children birth mothers number
1. Lovelle
CD Technologies Asia, Inc. © 2020 October 13, Female Lovella Cert. of Live Registry no. cdasiaonline.com
1. Lovelle October 13, Female Lovella Cert. of Live Registry no.
Fatima 2000 Madamba Birth 2005-24
Escuyos Escuyos
Dagala
2. Letti March 5, Female Crissan Certificate Registry no.
Duane 2007 Roselle of Live Birth 2007-5007
Erong Mullanida
Dagala Erong
3. Vince March 24, Male Genylou Certificate Registry no.
Ezekiel 2008 Cortez of Live Birth 2008-3920
Petallo Petallo
Dagala
03. Before, Judge Dagala was married to Gilgie, he begot a child from Lovella Madamba
Escuyos on October 13, 2000. The child was acknowledged on January 3, 2005 pursuant to
R.A. 9255;
04. On March 5, 2007, Letti Duanne Erong Dagala was born to a 21 years old student named
Crissan Roselle Mullanida Erong. In the said birth certi cate, the name of the father is Exequil
Longos Dagala whose occupation is Judge;
05. Then, on March 24, 2008, Exequil Dagala had sired a son named Vince Ezekiel Dagala from
Genelou Cortez Petallo, an incumbent Barangay Captain in Barangay Halian, Del Carmen,
Surigao del Norte;
06. After two years of Exequil's married to Gilgie Gersara Dagala, they agreed to live separately.
His wife is presently working as Local Treasury Operation Officer IV at the City Treasury Office
in Surigao del Norte. Judge Dagala provided monthly support to his wife Gilgie amounting to
Php10,000.00; ICHDca
07. Veri cation conducted on the alleged illegal logging activities of Judge Dagala, the
undersigned had found out that an incident in the year 2014, a certain Genelou C. Petallo,
mother of his son Vince Exequil, appeared at the O ce of the Department of Environment and
Natural Resources (DENR) in Del Carmen, Surigao del Norte (see DENR reports and
documents) when hardwood furnitures were confiscated by their personnel;
08. The said furnitures being con scated were believed to be owned by both Judge and Genelou
Petallo because in the place they were known collectors of driftwoods and hardwoods. In
fact, hardwood lumbers and driftwoods were utilized as fence in his house (see pictures);
09. Residents of Siargao Island alleged that Brgy. Captain Genelou C. Petallo and Judge Dagala
are living together in their house at Del Carmen, Surigao del Norte;
10. On the other hand, Mr. Sergio Tiu Comendador, Judge Dagala's court (MCTC) Interpreter at
Del Carmen, Surigao del Norte was recently arrested during the buy bust operation conducted
by Philippine National Police of Dapa, Surigao del Norte;
11. Finally, Judge Dagala is alleged to be the owner of Sugba cockpit in Km. 1, Del Carmen,
Surigao del Norte, a name similar to his beach resort near Del Carmen, Surigao del Norte. The
cockpit was allegedly sold to Marites Borchs for about Php550,000[.] 1 8 (Grammatical errors
in the original)
On April 25, 2016, Judge Dagala was asked to comment on the Anonymous Complaint dated
September 30, 2015. 1 9 The order from the O ce of the Court Administrator reads in its material portions
as follows:
A preliminary investigation was conducted on the matter which yielded the following
information:
1) that on July 18, 2006, you were legally married to Gilgie Consigo Gersara, but had no children;
2) that you have impregnated three (3) different women and sired the following children, who are
named below:
Name of Mother Name and Date of Birth Certificate of Live Birth
of the Child Registry Number
1) Lovelle Lovelle Fatima Escuyos- Reg. No. 2005-24
Madamba Escuyos Dalaga — October 13,
2000
2) Crissan Roselle Letti Duane Erong Dalaga Reg. No. 2007-3007
2) Crissan Roselle Letti Duane Erong Dalaga Reg. No. 2007-3007
Mallanida Erong — March 5, 2007
3) Genelou Cortez Vince Ezekiel Petallo Reg. No. 2008-3920
Petallo Dalaga — March 24, 2008
3) that upon investigation conducted on your alleged illegal logging activities, it was found out
that in 2014, a certain Genelou C. Petallo appeared at the o ce of the Department of
Environment and Natural Resources (DENR), Del Carmen, Surigao Del Norte because the latter
con scated the hardwood furniture which was believed to be owned by you and Ms. Petalla
given that you are known collectors of driftwood and hardwood in Del Carmen, Surigao Del
Norte, and in fact, the fence of your house are made of hardwoods and driftwoods;
4) that on the allegation of illegal drugs activities, the investigation report shows that Sergio Tiu
Comendador, Court Interpreter at the MCTC, San Isidro, Siargao Island, Surigao del Norte, was
recently arrested in the buy bust operation conducted by Philippine National Police, Dapa,
Surigao del Norte; and
5) that you are known to be the owner of Sugba cockpit located at Km. 1, Del Carmen, Surigao Del
Norte, a name similar to your nearby beach resort which was sold to Marites Borchs for around
Five Hundred Fifty Thousand Pesos (P550,000.00).
In this regard, you are hereby directed to COMMENT on the matter within ten (10) days from
receipt of this Indorsement. A copy of the said anonymous letter-complaint, certi cate of marriage
and three (3) Certi cate[s] of Live Birth are herewith attached. Preferential attention on this matter is
expected. 2 0
Though the order to comment attached a copy of the Anonymous Complaint, it did not mention his
missing entries in his Personal Data Sheet. It focused on his allegedly having "impregnated three (3)
different women." Neither did it mention his possession of any unregistered rearm. The Court
Administrator did not reveal that he had photos and video clips in his possession. It appears that he also
did not furnish copies of these pieces of evidence to the respondent. His focus was only on the children of
the respondent. cDHAES
Judge Dagala filed his Comment 2 1 on August 21, 2016.

Understandably, he had no comment regarding the incident which led to the anonymous complaint,
the alleged unregistered rearm, and his missing entries in his Personal Data Sheet. The Court
Administrator did not require him to comment on these matters.
His manifestation regarding his marriage to Gilgie Gersana 2 2 and his three children (3) was as
follows:
It is of public knowledge that I was married on July 15, 2006 to Gilgie Gersana not July 18,
2006 as alleged on the anonymous letter. My wife and I had been sweetheart for almost 2 years.
Before our wedding I had no idea that she cannot give me a baby of our own. Till after months of our
co-habitation she was diagnosed to have tumor in her ovary. I accompanied her to Cebu for
medication hoping that God will ultimately give us a blessing that we want. Not long after, her doctor
advised to (detach) her uterus to prevent further damage, but will incapacitate her to give birth.
Before our marriage tough, I already have a daughter named Fatima Lovelle Dagala born in the year
2000 with Lovelle Escuyos as mother but Fatima lives in her mother's house and the latter exercise
parental authority over her. During our marriage GILGIE and I were able to build our cockpit arena at
the Municipality of Del Carmen because she also earn income as market supervisor of the town. I
was then a prosecutor assign at Cebu during our marriage and Gilgie lives at Surigao City, her place
of residence. Because of constant ghting in our married life, Gilgie decides to go back to Surigao
City for good, while I stay solo in the house of my parents at Del Carmen. Admittedly, without any
remorse, I was able to impregnate the above mentioned lads. To err is human your honors and to
forgive is divine, My wife Gilgie knows of the existence of my son and daughter, before and after our
marriage, but did not interpose any objection, knowing fully my desire and ambition to have babies.
She learned to forgive and forget me, and impliedly submits to the notion that we are not really
meant for each other and for eternity. I have a sister named Maritess who permanently lives in turkey
and married a citizen thereat. The house were I live in Del Carmen is owned by my sister she
renovated the said house and spend over half a million pesos to make it presentable. I am just an
administrator of the same with privilege to stay and use the said house, while my sister is in Turkey.
2 3 (Grammatical errors in the original)
The Court Administrator's report did not disclose his discovery of missing entries in the
respondent's Personal Data Sheet. The Court Administrator also did not mention whether his ndings as
regards the respondent's records with the Firearms and Explosives Unit were transmitted to the
respondent for his comment. There was nothing in his report which showed that he requested the
respondent judge to produce any license for any rearm or to con rm that he was the person shown in the
photographs and the video clips in his possession. TCAScE
It used to be that administrative cases against judges charged with grave offenses were in the
nature of criminal or penal proceedings. 2 4 In recent years, this Court has recognized that judges were not
a special species of public servants that needed a higher quantum of proof to be held accountable. 2 5
Administrative cases against judges then took a turn for requiring merely substantial proof, a lower
quantum than proof beyond reasonable doubt. 2 6 However, this development did not compromise the
requirement of due process.
To be informed of the accusations against him and be given the opportunity to answer are
constitutional guarantees that eluded Judge Dagala in the proceedings before the O ce of the Court
Administrator. Charges of dishonesty in his Personal Data Sheet, his use of and access to a high-powered
rearm that he was not authorized to own, and the video footage of acts as speci ed in the Anonymous
Complaint were not presented to Judge Dagala. Neither was respondent informed of the manner in which
these pieces of evidence were obtained against him.
It was not on record when the O ce of the Court Administrator obtained a copy of Judge Dagala's
Personal Data Sheet dated October 18, 2006. 2 7 Meanwhile, on August 19, 2016, the O ce of the Court
Administrator received the video recording of the incident in the Anonymous Complaint. 2 8 Judge Dagala
led his Comment four (4) days later, on August 23, 2016. 2 9 On August 25, 2016, the Philippine National
Police Firearms and Explosives O ce issued a Certi cation that Judge Dagala was not a licensed or
registered " rearm holder of any kind and caliber." 3 0 Records disclose that he was not required to
comment on these matters and was not even made aware that these pieces of evidence existed and were
in the Office of the Court Administrator's possession.
I have no issues about the supervisory role this Court has over all other courts and personnel, the
manner in which complaints against erring judges may be led, and our mandate to conduct preliminary
investigations. What I have qualms about is the piecemeal erosion of due process by the very people who
must be at the forefront of ensuring its diligent application.
III
We must distinguish between the standards we require of judges on one hand and those that are
required of priests, imams, and other religious leaders on the other. A lawyer and a judge take a speci c
oath of o ce. A lawyer and a judge should not be required to be saints. We should not confuse the
morality of our secular law with the ethical requirements of our religious faiths.
ASEcHI
The vulnerability of having committed mistakes in the past even assists the human incumbents of
our judicial o ces. Past mistakes properly acknowledged, addressed, and atoned broaden the
understanding of a judge of human frailty and the possibility of forgiveness from those he or she has
wronged. Properly addressed, human sins inscribe compassion for our judges. Within the limits of the law,
he or she will be able to calculate the proper reliefs of penalties appropriate to the action.
Implicit in this understanding is the view that our judiciary is not simply a mechanical cog that
dispenses speci c penalties without full regard for the context of the facts proven. If this were so, current
technology could simply be harnessed to substitute judges and justices, even for this Court, with robots.
The legal system composed of the branches that promulgate, execute, and interpellate the law should not
be seen as less than human institutions.
Justices should be able to see the general norms that would apply given the set of facts that can be
reasonably inferred from the evidence. However, in interpreting the facts, we should always examine the
premises we have that are articulated by our conception of our realities that provide us with the basis for
our inferences.
Judge Dagala admitted that he has sired children with women other than his wife. 3 1 However, this
admission, taken alone, is inadequate to prove immorality.
IV
The easiest and most objective conception of the kind of immorality su cient to remove a judge is
one which also amounts to an illegal act. Following this strand of logic, the evidence presented does not
seem to be sufficient.
The Revised Penal Code punishes indiscretion through the offenses of Concubinage or Adultery.
None of the elements of these offenses were sufficiently proven in the records of this case.
Concubinage is committed by a married man who has carnal knowledge of a woman not his spouse
under scandalous circumstances. 3 2 It is not simply the presence of illicit carnal knowledge that the law
requires. There must be separate proof that this was done "under scandalous circumstances," different
from the act of sexual intercourse. 3 3 Obviously, there is no evidence in the record that can remotely be
considered as sufficient for this purpose.
Adultery, on the other hand, is committed by a married woman who has a relationship with a man
who is not her husband. 3 4 For adultery to happen, it is not material that the man is likewise married. 3 5
Likewise, the man may be convicted on the basis of conspiracy with the married woman. 3 6
Again, the records of the case are bereft of proof that the women, with whom the respondent had
his children, were married. The lack of this evidence, thus, leads to a reasonable conclusion that adultery
may not have been committed. cTDaEH
More importantly, the offenses of concubinage or adultery cannot be committed because, in my

view, it violates the equal protection clause of the Constitution. The provisions, promulgated in 1939, are
now anathema to the requirement of "fundamental equality before the law of men and women" 3 7 now
prescribed in the Constitution, required by our treaty commitments, 3 8 and exacted as standard by our
statutes. 3 9 Should evidence have been presented to amply prove concubinage or adultery in this case, the
offenses would still have had to hurdle doubt as to its constitutionality and illegality. These would have
been sufficient even to create reasonable doubt that should be appreciated in favor of the respondent.
Besides, no prosecution for adultery or concubinage could prosper unless it is brought by the
offended party. 4 0 This acknowledges the choices of the offended party, the desire to assert autonomy,
the desire to settle the indiscretions within the con nes of family, or the wish not to add more to the
suffering of all the children involved. All these purposes would be undermined if we were to allow a
stranger, like the neighbor in this case, to initiate the complaint.
Ratio legis est anima.
V
The other laws that would have been violated are the statutes that hope to negate the patriarchy in
our culture. Among these are the Anti-Sexual Harassment Act 4 1 and the Anti-Violence Against Women and
Their Children Act. 4 2
The Anti-Sexual Harassment Act would apply if there was a power relationship present as
characterized by the law. 4 3 For example, it would have been breached if there was evidence that
respondent took advantage of his o cial position to entice carnal knowledge of a woman who was not his
spouse. Again, there is no iota of evidence that will lead this Court to properly infer that this statute was
breached.
The Anti-Violence Against Women and Children Act proscribes many forms of abuses. Section 5,
paragraphs (h) and (i) describe those that can be present in the context of extra-marital affairs. Thus:
Section 5. Acts of Violence Against Women and Their Children. — The crime of violence
against women and their children is committed through any of the following acts:
xxx xxx xxx
(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another,
that alarms or causes substantial emotional or psychological distress to the woman or her child . . .
xxx xxx xxx
(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or
her child, including, but not limited to, repeated verbal and emotional abuse, and denial of nancial
support or custody of minor children or denial of access to the woman's child/children.ITAaHc
Again, the records of this case are bereft of evidence to conclude that there are su cient acts which
constitute all the elements of all the offenses enumerated in these provisions. Clearly, extramarital affairs
do not per se cause abuse to either women or the children in each of these relationships.
In any of these offenses, the participation of the victimized woman or child to present the evidence
would be necessary. Again, in this case, none of the women or the children involved was presented in
evidence. The complaint was anonymous.
VI
I propose the following guidelines:
If at all, any complaint for immorality should not be entertained except when it is commenced by its
victims. That is, the betrayed spouse, the paramour who has been misled, or the children who have to live
with the parent's scandalous indiscretions.
I accept that in some cases, especially where there is some form of violence against women and
children within the families affected, it would be di cult for the victims to come forward. It should only be
then that a third party's complaint may be entertained. The third party must show that it acts for the benefit
of the victims, not as a means to cause more harm on them. Furthermore, the inability of the victims must
be pleaded and proven.
In my separate opinion in Tuvillo v. Laron, 4 4 I concurred with the dismissal of a judge for immorality
and gross misconduct based on the complaint of the parties directly affected — the mistress and her
husband. In Perfecto v. Esidera , 4 5 this Court through my ponencia, did not sanction a judge for immorality
based on the complaint of a third person. She was suspended for violating Canon 1 of the Code of
Professional Responsibility when she knowingly contracted a marriage before a solemnizing o cer who
had no license to do so. I remain consistent in my view that immorality, as basis for administrative
complaints, cannot be based on religious grounds:
Thus, for purposes of determining administrative liability of lawyers and judges, "immoral
conduct" should relate to their conduct as o cers of the court. To be guilty of "immorality" under the
Code of Professional Responsibility, a lawyer's conduct must be so depraved as to reduce the
public's con dence in the Rule of Law. Religious morality is not binding whenever this court decides
the administrative liability of lawyers and persons under this court's supervision. At best, religious
morality weighs only persuasively on us. 4 6
I appreciate the ponente's acknowledgment that "immorality only becomes a valid ground for
sanctioning members of the Judiciary when the questioned act challenges his or her capacity to dispense
justice." 4 7 This a rms this Court's principle that our jurisdiction over acts of lawyers and judges is
confined to those that may affect the people's confidence in the Rule of Law. 4 8 There can be no immorality
committed when there are no victims who complain. And even when they do, it must be shown that they
were directly damaged by the immoral acts and their rights violated. A judge having children with women
not his wife, in itself, does not affect his ability to dispense justice. What it does is offend this country's
predominantly religious sensibilities. cSaATC
We should not accept the stereotype that all women, because they are victims, are weak and cannot
address patriarchy by themselves. The danger of the State's over-patronage through its stereotype of
victims will be far reaching. It intrudes into the autonomy of those who already found their voice and may
have forgiven.
The highest penalty should be reserved for those who commit indiscretions that (a) are repeated, (b)
result in permanent rearrangements that cause extraordinary di culties on existing legitimate
relationships, or (c) are prima facie shown to have violated the law. The negligence or utter lack of
callousness of spouses who commit indiscretions as shown by their inability to ask for forgiveness, their
concealment of the act from their legitimate relationships, or their lack of support for the children born out
of wedlock should be aggravating and considered for the penalty to be imposed.
VII
Many of us hold the view that it is unethical to breach one's fervent commitments in an intimate
relationship. At times however, the breach is not concealed and arises as a consequence of the couple's
often painful realization that their marriage does not work. In reality, there are couples who already live
separately and whose children have grown and matured understanding that their environment best
nurtured them when their natural parents do not live with each other with daily pain.
In this case, the wife of the judge may have chosen to live separately. They have been childless due
to an unfortunate disease suffered by the wife. It appears from the report of the National Bureau of
Investigation that the wife had been regularly receiving support from the judge. There are no complaints
from any of the children fathered by the respondent. Finally, there is the unrebutted manifestation of the
judge that his wife has forgiven and even forgotten him. CHTAIc
It appears that the judge's indiscretions, which were rumors from the point of view of the
Anonymous Complaint and unmentioned in the report of the investigating judge but which became the
main basis for the interim report of the male agent of the National Bureau of Investigation, are now the
main basis for dismissing the respondent. All these without consulting the spouse or any of his children.
All these without regard to whether their lives should again be disrupted.
It is time that we show more sensitivity to the reality of many families. Immorality is not to be
wielded high-handedly and in the process cause shame on many of its victims. It should be invoked in a
calibrated manner, always keeping in mind the interests of those who have to suffer its consequences on a
daily basis. There is a time when the law should exact accountability; there is also a time when the law
should understand the humane act of genuine forgiveness.
ACCORDINGLY, I concur in the result in so far as Judge Exequil L. Dagala is found GUILTY of GROSS
MISCONDUCT and in the penalties imposed.
Footnotes
* No part.
1. Rollo, pp. 84-85.

2. Id. at 84.
3. Id.
4. Rollo, p. 104.
5. Id. at 80.
6. Id. at 72-73.
7. Id. at 78.
8. Also referred to as "Comendador" in some parts of the record.
9. Also referred to as "Boerchs" in some parts of the record.
10. Rollo, pp. 69-71.
11. Id. at 66.
12. Id. at 24-27.
13. Id. at 25.
14. Id.
15. Rollo, pp. 25-26.
16. Id. at 27.
17. Id. at 63.
18. Id. at 4.
19. Id. at 5, 28.
20. Id. at 6-7.
21. Id. at 7.
22. Comprehensive Firearms and Ammunition Regulation Act.
23. Rollo, pp. 8, 13.
24. CONSTITUTION, Art. VIII, Sec. 6.
25. RULES OF COURT, Rule 140, Sec. 1.
26. Samahan ng mga Babae sa Hudikatura (SAMABAHU) v. Untalan , A.M. No. RTJ-13-2363, February 25, 2015, 751
SCRA 597, 611.
27. Re: Anonymous Letter-Complaint on the Alleged Involvement and for Engaging in the Business of Lending
Money at Usurious Rates of Interest of Ms. Dolores T. Lopez, SC Chief Judicial Staff O cer, and Mr.
Fernando M. Montalvo, SC Supervising Judicial Staff O cer, Checks Disbursement Division, Fiscal
Management and Budget Office, A.M. No. 2010-21-SC, September 30, 2014, 737 SCRA 195, 203-204.
28. Puse v. Delos Santos-Puse, G.R. No. 183678, March 15, 2010, 615 SCRA 500, 518.
29. Id.
30. Rollo, pp. 65-66.
31. Id. at 123.
32. Id. at 124-129.
33. Id. at 66.
34. Id. at 84.
35. Concurring and Dissenting Opinion, J. Leonen, p. 3.

36. Imperial, Jr. v. Government Service Insurance System, G.R. No. 191224, October 4, 2011, 658 SCRA 497, 506.
37. Rollo, p. 25.
38. Id. at 128.
39. Id. at 123.
40. Id. at 128.
41. Id. at 25. Emphasis supplied.
42. Id.
43. Concerned Employees of the RTC of Dagupan City v. Falloran-Aliposa , A.M. No. RTJ-99-1446, March 9, 2000,
327 SCRA 427, 447.
44. A.M. No. P-06-2282, August 7, 2009, 595 SCRA 455.
45. Id. at 462. Citations omitted.
47. NEW CODE OF JUDICIAL CONDUCT FOR THE PHILIPPINE JUDICIARY, Canon 4, Sec. 1.
48. A.M. No. RTJ-90-447, July 12, 1991, 199 SCRA 75.
49. Id. at 83-84. Citations omitted; emphasis and underlining supplied.
50. Tuvillo v. Laron , A.M. No. MTJ-10-1755, October 18, 2016; O ce of the Court Administrator v. Ruiz , A.M. No.
RTJ-13-2361, February 2, 2016, 782 SCRA 630; Tormis v. Paredes , A.M. No. RTJ-13-2366, February 4, 2015,
749 SCRA 505; Rivera v. Blanca or , A.M. No. RTJ-11-2290, November 18, 2014, 740 SCRA 528; Lopez v.
Lucmayon, A.M. No. MTJ-13-1837, September 24, 2014, 736 SCRA 291; Sison-Barias v. Rubia , A.M. No. RTJ-
14-2388, June 10, 2014, 726 SCRA 94; Decena v. Malanyaon , A.M. No. RTJ-10-2217, April 8, 2013, 695 SCRA
264; Angping v. Ros , A.M. No. 12-8-160-RTC, December 10, 2012, 687 SCRA 390; Perfecto v. Desales-Esidera ,
A.M. No. RTJ-11-2270, January 31, 2011, 641 SCRA 1; Toledo v. Toledo , A.M. No. P-07-2403, February 6,
2008, 544 SCRA 26; Tan v. Pacuribot, A.M. No. RTJ-06-1982, December 14, 2007, 540 SCRA 246; Jamin v. De
Castro, A.M. No. MTJ-05-1616, October 17, 2007, 536 SCRA 359; Estrada v. Escritor, A.M. No. P-02-1651, June
22, 2006, 492 SCRA 1; Court Employees of the MCTC, Ramon Magsaysay, Zamboanga del Sur v. Sy , A.M. No.
P-93-808, November 25, 2005, 476 SCRA 127; Kaw v. Osorio , A.M. No. RTJ-03-1801, March 23, 2004, 426
SCRA 63; O ce of the Court Administrator v. Sanchez , A.M. No. RTJ-99-1486, June 26, 2001, 359 SCRA 577;
Agarao v. Parentela, Jr. , A.M. No. RTJ-00-1561, November 21, 2001, 370 SCRA 27; Re: Complaint of Mrs.
Rotilla A. Marcos and Her Children Against Judge Ferdinand J. Marcos, RTC, Br. 20, Cebu City , A.M. No. 97-2-
53-RTC, July 6, 2001, 360 SCRA 539; Dela Cruz v. Bersamira , A.M. No. RTJ-00-1567, January 19, 2001, 349
SCRA 626; Yu v. Leanda, A.M. No. RTJ-99-1463, January 16, 2001, 349 SCRA 58; Calilung v. Suriaga, A.M. No.
MTJ-99-1191, August 31, 2000, 339 SCRA 340; Dela Cruz v. Bersamira , A.M. No. RTJ-00-1567, July 24, 2000,
336 SCRA 353; Marquez v. Clores-Ramos , A.M. No. P-96-1182, July 19, 2000, 336 SCRA 122; Vedaña v.
Valencia, A.M. No. RTJ-96-1351, September 3, 1998, 295 SCRA 1; Magarang v. Jardin, Sr. , A.M. No. RTJ-99-
1448, April 6, 2000, 330 SCRA 79; Concerned Employees of the RTC of Dagupan City v. Falloran-Aliposa ,
supra; Naval v. Panday, A.M. No. RTJ-95-1283, July 21, 1997, 275 SCRA 654; Talens-Dabon v. Arceo, A.M. No.
RTJ-96-1336, July 25, 1996, 259 SCRA 354; Imbing v. Tiongson , A.M. No. MTJ-91-595, February 7, 1994, 229
SCRA 690.
51. Rollo, p. 129.
52. Republic Act No. 7877 (1995).
53. Republic Act No. 9262 (2004).

54. Leynes v. Veloso, A.M. No. 689-MJ, April 13, 1978, 82 SCRA 325, 329.
55. A.C. No. 1053, August 31, 1981, 107 SCRA 1.
56. Id. at 6-7.
58. Supra.
59. Id.
60. A.M. No. MTJ-10-1755, October 18, 2016 (J. Leonen, Concurring Opinion).
61. A.M. No. 689-MJ, April 13, 1978, 82 SCRA 325.
62. Id. at 328-329.
65. G.R. No. 179267, June 25, 2013, 699 SCRA 352.
66. Id. at 411-412.
6 7 . See
<https://psa.gov.ph/sites/default/files/2013%20%20National%20Demographic%20and%20Health%20Survey-
Philippines.pdf>, last accessed on June 16, 2017.
68. Id.
69. Id.
70. Id.
70. n Shelby County v. Holder, 570 US 2 (2013), J. Ginsburg, Dissenting Opinion.
72. Note from the Publisher: Copied verbatim from the official copy. Missing Footnote Text and Footnote Reference.
73. See A.M. No. MTJ-10-1755, October 18, 2016 (J. Leonen, Concurring Opinion).
74. See Planned Parenthood v. Casey , 505 U.S. 833 (1992).

75. Toledo v. Toledo, A.M. No. P-07-2403, February 6, 2008, 544 SCRA 26.
76. Campos v. Campos, A.M. No. MTJ-10-1761, February 8, 2012, 665 SCRA 238.
78. Id.
79. Rollo, p. 25.
79. n A.M. No. 97-2-53-RTC, July 6, 2001, 360 SCRA 539.
80. Id. at 562.
81. A.M. No. MTJ-11-1801, February 27, 2013, 692 SCRA 18.
82. Id. at 23-24.
84. Id. at 22-23.
86. Note from the Publisher: Copied verbatim from the official copy. Missing Footnote Text and Footnote Reference.
87. REVISED PENAL CODE, Art. 349.
90. CONSTITUTION, Art. XV, Sec. 2.
91. Supra note 84 at 8.
92. A.M. No. MTJ-10-1755, October 18, 2016 (J. Leonen, Concurring Opinion).
93. A.M. No. MTJ-10-1755, October 18, 2016.
94. Id.
95. Id.

LEONEN, J., concurring and dissenting:
1. Rollo, p. 7, Office of the Court Administrator's Report.
2. Id. at 8.
3. Id. at 84, Office of the Ombudsman of Mindanao's Letter dated September 30, 2015.
4. Id. at 1-10.
5. Id. at 65-66.
6. Id. Judge Dagala was only required to comment upon the issue of impregnating three (3) women other than his
wife, alleged illegal logging, illegal drugs, and illegal gambling activities.
7. Id. at 84-85.
8. Id. at 59, Office of the Court Administrator's Memorandum.
9. Id. at 69-71. The Memorandum was submitted by Agent Cyril June B. Yparraguirre.
10. Id. at 70.
11. Id. at 1, Office of the Court Administrator's Report.
12. Id. at 84, Office of the Ombudsman of Mindanao's Letter dated September 30, 2015.
14. Id. at 59, Office of the Court Administrator's Memorandum.
15. Id.
16. Id.
18. Id. at 69-71.
19. Id. at 65-66, Office of the Court Administrator's 1st Indorsement.
20. Id.
21. Id. at 24-27.

2 2 . Judge Dagala referred to his wife as "Gilgie Gersana" in his Comments and Manifestation while the 1st
Indorsement of the O ce of the Court Administrator and the Memorandum of the National Bureau of
Investigation, CARAGA Region XIII named her as "Gilgie Gersara."
23. Id. at 24-25.
24. Macias v. Judge Macias, 617 Phil. 18, 26-27 (2009) [Per J. Nachura, Third Division].
25. Id.
26. Id., See also Avanceña v. Judge Liwanag , 454 Phil. 20 (2003) [Per Curiam, En Banc]; Resngit-Marquez v. Judge
Llamas, 434 Phil. 184 (2002) [Per Curiam; En Banc].
27. Rollo, pp. 7, 14-17.
28. Id. at 5, 28.
29. Id. at 24-27.
30. Id. at 13.
31. Id. at 25.

32. REV. PEN. CODE, art. 334 provides:
Article 334. Concubinage. — Any husband who shall keep a mistress in the conjugal dwelling, or, shall have
sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with
her in any other place, shall be punished by prisión correccional in its minimum and medium periods.
The concubine shall suffer the penalty of destierro.
33. Id.
34. REV. PEN. CODE, art. 333 provides:
Article 333. Who are Guilty of Adultery. — Adultery is committed by any married woman who shall have
sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing
her to be married, even if the marriage be subsequently declared void.
Adultery shall be punished by prisión correccional in its medium and maximum periods.
If the person guilty of adultery committed this offense while being abandoned without justi cation by the
offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be
imposed.
35. See The United States v. Topiño, 35 Phil. 901 (1916) [Per J. Trent, Second Division].
36. Id.
37. CONST., art. II, sec. 14.

38. See Charter of the United Nations, 1 UNTS XV (1945), art. 1 (3). The Charter was rati ed by the Philippines on
October 11, 1945.
See Universal Declaration of Human Rights, 217 A (III) (1948), Preamble, art. 1, 7, and 16. The Universal
Declaration of Human Rights was adopted by the United Nations General Assembly on December 10, 1948
where the Philippines voted for its approval;
See Convention on the Elimination of All Forms of Discrimination Against Women, United Nations, Treaty
Series, vol. 1249, p. 13 (1979), art. 15. The Convention was ratified by the Philippines on August 5, 1981.
39. Rep. Act No. 9710 (2009) or The Magna Carta of Women.
40. REV. PEN. CODE, art. 344, paragraphs 1 and 2 provide:
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of
lasciviousness. — The crimes of adultery and concubinage shall not be prosecuted except upon a complaint
filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both the guilty parties, if they are
both alive, nor, in any case, if he shall have consented or pardoned the offenders.
41. Rep. Act No. 7877 (1995).

42. Rep. Act No. 9262 (2004).
43. Rep. Act No. 7877, sec. 3 provides:
Section 3. Work, Education or Training-related Sexual Harassment De ned. — Work, education or training-
related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the
employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, in uence or
moral ascendancy over another in a work or training or education environment, demands, requests or
otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement
for submission is accepted by the object of said act. (Emphasis supplied)
4 4 . See Separate Opinion of J. Leonen in Tuvillo v. Laron , A.M. No. MTJ-10-1755, October 18, 2016,
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/october2016/MTJ-10-
1755_leonen.pdf [Per Curiam, En Banc].
45. 764 Phil. 384 (2015) [Per J. Leonen, Second Division].
46. Id. at 399-400.

47. Per Curiam p. 17.
48. Perfecto v. Esidera, 764 Phil. 384, 407 (2015) [Per J. Leonen, Second Division].
n Note from the Publisher: copied verbatim from the official copy. Duplication of Footnote reference.
n Note from the Publisher: Copied verbatim from the official copy. Duplication of Footnote reference.
SECOND DIVISION
[G.R. No. 104504. October 31, 1997.]
PEDRITO PASTRANO , petitioner, vs . HON. COURT OF APPEALS and

the PEOPLE OF THE PHILIPPINES , respondents.
Alex L. Monteclar for petitioner.

The Solicitor General for respondents.
SYNOPSIS
On February 20, 1989, the two sons of petitioner Pedrito Pastrano by his estranged
wife sought the help of PC Capt. Manoza in connection with the death of their brother
Clyde Pastrano. The brothers reported that their father and his common-law wife were
keeping unlicensed rearms in their house. They executed joint a davit in which they
stated that they had personal knowledge that their father was keeping three (3) rearms
of different calibers in the bedroom of his house. On the basis thereof, Capt. Manoza
applied for a search warrant on the same day. Judge Teodorico M. Durias of the Municipal
Trial Court of Oroquieta City issued a search warrant which Capt. Manoza and his men
served at the residence of Pedrito Pastrano at Capital Drive, Oroquieta City. Manoza and
his men seized two rearms of different caliber and several rounds of ammunition also of
different caliber. On the basis of the evidence thus seized, petitioner and his common-law
wife were charged with illegal possession of rearms and ammunition as penalized by P.D.
1866. After trial, the court rendered a decision nding petitioner guilty, and his common-
law wife innocent of the charge. On appeal, the Court of Appeals upheld the decision of the
trial court. In this petition for review, petitioner contends that the appellate court erred in
convicting him of the crime despite clear and convincing proof that he is duly authorized to
carry rearms per PTCFOR No. 40448 and Mission Order No. 01-06-89. He also contends
that the search warrant issued by Judge Durias is invalid for failure to comply with the
basic requirements of the Constitution. DCHaTc
The Supreme Court a rmed the judgment of conviction. The Court held that a
Permit to Carry Firearm Outside Residence does not render the license unnecessary
because its purpose is only to authorize its holder to carry the rearm outside his
residence. A Permit to Carry presupposes that the party to whom it is issued is duly
licensed to possess the rearm in question. For the same reason, the Court also held that
a Mission Order cannot take the place of a license. A Mission Order can only be issued to
the holder of a permit/license or authority to possess rearm. On the issue of the absence
of a written deposition showing that the judge had examined the complainant and his
witnesses by means of searching questions in writing and under oath as required by Sec. 4
of Rule 126 of the Rules of Court, although it is a ground for quashing the search warrant in
the case at bar, petitioner did nothing to this end. He did not move to quash the
information before the trial court, nor did he object to the presentation of the evidence as
being the product of an illegal search. Petitioner's failure to do so effectively waived any
objection based on the illegality of the search.
Judgment of conviction affirmed.
CD Technologies Asia, Inc. 2018 cdasiaonline.com

SYLLABUS
1. CRIMINAL LAW; P.D. 1866; A PERMIT TO CARRY A FIREARM OUTSIDE THE

RESIDENCE PRESUPPOSES THAT THE PARTY TO WHOM IT IS ISSUED IS DULY LICENSED
TO POSSESS THE FIREARM IN QUESTION. — The trial court and the Court of Appeals both
ruled that the Mission Orders and the Permits to Carry Firearm Outside of Residence did
not give petitioner authority to possess the rearms in question. We agree. It is clear from
P.D. No. 1866, §1 and the Implementing Rules, §2 that a license is necessary in order to
possess a rearm. A Permit to Carry Firearm Outside Residence does not render the
license unnecessary because its purpose is only to authorize its holder to carry the rearm
outside his residence. A Permit to Carry a Firearm Outside the Residence presupposes
that the party to whom it is issued is duly licensed to possess the rearm in question. This
is clear from the provision of the Implementing Rules.
2. ID.; ID.; A MISSION ORDER CANNOT TAKE THE PLACE OF A LICENSE. — A
Mission Order cannot take the place of a license. As the trial court pointed out: Sec. 1(d) of
the implementing rules and regulations of P.D. No. 1866 de nes a mission order as a
"written directive or order issued by competent authority to persons under his supervision
and control for a de nite purpose or objective during a speci ed period and to such place
or places as therein mentioned which may entitle the bearer thereof to carry his duly
issued or licensed rearm outside of his residence when so speci ed therein." As in the
case of Permit to Carry Firearm Outside the Residence, a Mission Order can only be issued
to the holder of a permit/license or authority to possess firearm. SaHIEA
3. ID.; ID.; A PERMIT/LICENSE OR AUTHORITY TO POSSESS FIREARMS IS NOT

TRANSFERABLE TO THE PURCHASE OF THE FIREARM. — Nor is there any merit in
petitioner's contention that since the .32 cal. revolver is covered by a license issued to its
former owner, petitioner's possession of the same rearm is legal. The permit/license or
authority to possess rearm contemplated by P.D. No. 1866 and its Implementing Rules is
one which is issued to the applicant taking into account his quali cations. Contrary to
petitioner's contention, therefore, the possession of rearms is unlike the registration of
motor vehicles. A permit/license or authority to possess rearms is not transferable to the
purchaser of the firearm.
4. ID.; ID.; ILLEGAL POSSESSION OF FIREARMS; ELEMENTS OF THE CRIME;
ESTABLISHED IN CASE AT BAR. — We nd that the prosecution clearly established the
elements of the crime charged and that the Court of Appeals and the trial court correctly
found petitioner guilty beyond reasonable doubt of the crime of Illegal Possession of
Firearms and Ammunition.
5. ID.; ID.; ID.; PENALTY IMPOSED BY THE TRIAL COURT MODIFIED BY THE
COURT BY REDUCING IT IN VIEW OF R.A. No. 8294. — We hold that the penalty imposed on
petitioner should be modi ed by reducing it, in view of R.A. No. 8294, which took effect on
July 6, 1997. Penal statutes are to be retroactively applied insofar as they are favorable to
the accused. Under the new statute, the penalty for Illegal Possession of Firearm has been
reduced to prision correccional maximum and a ne of not less than P15,000.00 with
respect to the possession of the .32 cal. revolver and to prision mayor minimum and a ne
of P30,000.00 with respect to the possession of the .22 cal. Magnum revolver. Additional
bene t would redound to petitioner because the Indeterminate Sentence Law will have to
be applied.
6. REMEDIAL LAW; CRIMINAL PROCEDURE; ISSUANCE OF A SEARCH WARRANT;
ABSENCE OF WRITTEN DEPOSITION; OBJECTIONS TO THE LEGALITY OF THE SEARCH
WARRANT AND TO THE ADMISSIBILITY OF THE EVIDENCE WERE DEEMED WAIVED
WHEN NO OBJECTION TO THE LEGALITY OF THE WARRANT WAS RAISED DURING THE
TRIAL OF THE CASE NOR TO THE ADMISSIBILITY OF THE EVIDENCE OBTAINED
THROUGH SAID WARRANT. — Rule 126, §4 indeed requires the examination of the
complainant and his witnesses to be put in writing and under oath. But although this is a
ground for quashing a search warrant in this case, petitioner did nothing in this end. He
did not move to quash the information before the trial court. Nor did he object to the
presentation of the evidence obtained as being the product of an illegal search. In the
case of Demaisip v. Court of Appeals , we held: At any rate, objections to the legality of
the search warrant and to the admissibility of the evidence obtained thereby were
deemed waived when no objection to the legality of the search warrant was raised
during the trial of the case nor to the admissibility of the evidence obtained through
said warrant. Petitioner thus waived any objection based on the illegality of the search.
As held in People v. Omaweng , the right to be secure against unreasonable searches
and seizures, like any another right, can be waived and the waiver may be made either
expressly or impliedly.
DECISION
MENDOZA , J : p
This is a petition for review on certiorari of the decision of the Court of Appeals,
a rming the conviction of petitioner Pedrito Pastrano of the crime of Illegal Possession
of Firearms by the Regional Trial Court of Oroquieta City, Branch 13.
The facts are as follows:
On February 13, 1989, a group of students went to see Capt. Rodolfo Mañoza, then
intelligence operations o cer of the Philippine Constabulary, at Camp Naranjo, at
Oroquieta City. They reported having seen Clyde Pastrano beaten up by his father,
petitioner Pedrito Pastrano. The students were willing to testify but expressed fear of the
petitioner who, according to them, had rearms. Clyde Pastrano had died and it was
suspected he had been the victim of foul play.
On February 20, 1989, two sons of Pedrito Pastrano by his estranged wife — James
Clement G. Pastrano and Clinton Steve G. Pastrano — also saw Capt. Mañoza, seeking his
assistance in connection with the death of their brother Clyde. The brothers reported that
their father and his common-law wife were keeping unlicensed rearms in their house.
They executed a joint a davit on February 20, 1989 in which they stated that they had
personal knowledge of the fact that their father Pedrito Pastrano was keeping three (3)
firearms of different calibers in the bedroom of his house. cdll
On the basis of the a davit of the Pastrano brothers, Capt. Mañoza applied for a
search warrant on the same day.
After examining complainant and the two brothers, Judge Teodorico M. Durias of
the Municipal Trial Court of Oroquieta City (Branch I) issued a search warrant which Capt.
Mañoza and his men later served at the residence of Pedrito Pastrano at Capitol Drive,
Oroquieta City. Seized from petitioner's dwelling was a sack containing the following:
One (1) Revolver Cal. 22 Magnum with Serial No. 07345. Made in Germany
ROHMGMBH SONTHEM/BRENZ;
One (1) round ammunition for Cal. 22 Magnum;
One (1) Revolver Cal. 32 with Serial No. 233833 Colt Made in U.S.A.;
Six rounds of live Ammunition for Cal. 32 revolver.
On the basis of the evidence thus seized, petitioner Pedrito Pastrano y Capapas and
his common-law wife, Erlinda Ventir y Sanchez, were charged with Illegal Possession of
Firearms and Ammunition as penalized under P.D. No. 1866, §1. The information against
them alleged:
That on or about the 20th day of February 1989 and during the period prior
thereto, in Barangay Lower Langcangan, Oroquieta City, Philippines and within
the jurisdiction of this Honorable Court, the said accused conspiring together and
collaborating with each other, did then and there keep, possess and maintain at
their residence known as Door #1, Aguja Apartment, Capitol Drive, Lower
Langcangan, Oroquieta City, the following firearms:
One (1) Revolver Cal. 22 Magnum with Serial No. 07345, Made in Germany
ROHM GMBH SONTHEM/BRENZ;
One (1) round Ammunitions for Cal. 22 Magnum;
One (1) Revolver Cal. 32 with serial No. 233833 Colt. Made in U.S.A.,
Six (6) rounds live ammunition for Cal. 32 Revolver.
Without having the necessary license, authority and/or permit duly issued
to or granted them by the proper government agency/o cial as determined by
law.
Contrary to law.
On January 14, 1991, the trial court rendered a decision finding petitioner guilty, even
as it found his common-law wife, Erlinda Ventir, innocent of the charge. The dispositive
portion of its decision read:
WHEREFORE, this Court nds accused Erlinda Ventir innocent of the crime
charged but nds accused Pedrito Pastrano guilty beyond reasonable doubt of
illegal possession of rearms and ammunitions for which he is sentenced to
suffer an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of prision
mayor, as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS and ONE
(1) DAY reclusion temporal, as maximum. No pronouncement as to costs.
SO ORDERED.
On appeal, the Court of Appeals upheld the decision of the trial court. Hence, this
petition for review.
Petitioner contends:
1. The Court of Appeals erred as a matter of law in a rming the ndings of
the trial court convicting the accused of the crime of illegal possession of
rearms despite clear and convincing proof that accused is duly
authorized to carry rearms per PTCFOR No. 40448 and Mission Order No.
01-06-89.
2. The Search Warrant issued by Judge Teodorico Durias is invalid for failure
to comply with the basic requirements of the Constitution. Hence, the
evidence obtained is inadmissible in court.
The rst ground for the petition is without merit. P.D. No. 1866, §1 punishes "any
person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any rearm,
part of firearm, ammunition or machinery, tool or instrument used or intended to be used in
the manufacture of any rearm or ammunition" Section 2 of the Rules and Regulations
Implementing P.D. No. 1866 provides that:
Any person or entity desiring to import, manufacture, deal in, receive,
acquire, buy, sell, dispose of or possess any rearm, part of rearms, ammunition,
or explosives or machinery, tool or instrument used or intended to be used in the
manufacture of any rearm, parts of rearm, ammunition or explosives shall rst
secure the necessary permit/license/authority from the Chief of Constabulary,
except that in the case of application to manufacture rearms, ammunition or
explosives, the corresponding permit/license shall be issued, only with the prior
approval of the President.
The possession of any rearm without the requisite permit/license is thus unlawful.
In this case two witnesses for the prosecution, both from the Philippine Constabulary,
testi ed that petitioner had no license to possess the rearms seized from him. Sgt.
Eugenio Salingay, o cer-in-charge of the licensing of rearms at Camp Naranjo in
Oroquieta City, testi ed that petitioner and his common-law wife Erlinda Ventir were not in
the list of registered rearm holders in Misamis Occidental. Neither did they have any
pending application for a gun permit. cdasia
Capt. Rodolfo Mañoza, on the other hand, testi ed that he had made inquiries from
the Southern Command in Zamboanga City whether the rearms seized from petitioner
were organic rearms of that command and was informed that they did not belong to that
command. He also inquired from the commanding o cer of the 55th Infantry Battalion
whether Pedrito Pastrano and Erlinda Ventir were members of the Citizens Armed Forces
Geographical Unit (CAFGU) in Oroquieta City, and he found they were not.
Petitioner admitted ownership of the .32 cal. revolver bearing Serial No. 233833
(Exh. J) but claimed that the .22 cal. magnum revolver with Serial No. 07345 (Exh. I)
belonged to his cousin, a certain Luz Laspiñas, who gave it to him merely for safekeeping.
Petitioner claimed that he had bought the .32 cal. revolver in January 1989 from the
grandson of the late Atty. Felipe Tac-an who had a license to possess the gun. Petitioner
produced a Mission Order dated January 9, 1989 issued to him by Lt. Col. Celso A. Undag,
Philippine Army, Deputy Brigade Commander, and a Mission Order issued to Luz Laspiñas,
also by Lt. Col. Undag, as authority for them to possess the rearms in question. He also
presented a Permit to Carry Firearm Outside of Residence dated January 1, 1989 signed
by Major General Ramon Montaño, then chief of the Philippine Constabulary, for the firearm
he purchased and another Permit to Carry Firearm Outside of Residence issued to Luz
Laspiñas for the latter's gun.
The trial court and the Court of Appeals both ruled that the Mission Orders and the
Permits to Carry Firearm Outside of Residence did not give petitioner authority to possess
the firearms in question. We agree. It is clear from P.D. No. 1866, § 1 and the Implementing
Rules, § 2 that a license is necessary in order to possess a rearm. A Permit to Carry
Firearm Outside Residence does not render the license unnecessary because its purpose
is only to authorize its holder to carry the rearm outside his residence. A Permit to Carry a
Firearm Outside the Residence presupposes that the party to whom it is issued is duly
licensed to possess the rearm in question. This is clear from the following provision of
the Implementing Rules:
§3. Authority of private individuals to carry firearms outside
of residence.
a. As a rule, persons who are lawful holders of rearms (regular
license, special permit, certi cate of registration or M/R) are prohibited
from carrying their firearms outside of residence.
b. However, the Chief of Constabulary may, in meritorious cases

as determined by him and under such conditions as he may impose,
authorize such person or persons to carry firearm outside [of] residence.
c. Except otherwise provided in Secs. 4 and 5 hereof, station in
pursuance of an o cial mission or duty shall have the prior approval of
the Chief of Constabulary.
For the same reason, a Mission Order cannot take the place of a license. As the trial
court pointed out:
Sec. 1(d) of the implementing rules and regulations of P.D. No. 1866
de nes a mission order as a "written directive or order issued by competent
authority to persons under his supervision and control for a de nite purpose or
objective during a speci ed period and to such place or places as therein
mentioned which may entitle the bearer thereof to carry his duly issued or
licensed firearm outside of his residence when so specified therein."
As in the case of Permit to Carry Firearm Outside the Residence, a Mission Order can
only be issued to the holder of a permit/license or authority to possess firearm.
Nor is there any merit in petitioner's contention that since the .32 cal. revolver is
covered by a license issued to its former owner, petitioner's possession of the same
rearm is legal. The permit/license or authority to possess rearm contemplated by P.D.
No. 1866 and its Implementing Rules is one which is issued to the applicant taking into
account his quali cations. Contrary to petitioner's contention, therefore, the possession of
rearms is unlike the registration of motor vehicles. A permit/license or authority to
possess firearms is not transferable to the purchaser of the firearm.
The second ground for the present petition is that the evidence against petitioner
was obtained through illegal search. Petitioner cites the constitutional provision that
no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized. 1
Petitioner contends that Capt. Rodolfo Mañoza, who applied for the search warrant,
did not have personal knowledge of the facts on which the warrant was based. But the trial
court actually examined the two brothers, James Clement G. Pastrana and Clinton G. Steve
Pastrana. These two were the ones who reported the matter to Capt. Mañoza. They gave
information of the illegal possession of rearms by their father, petitioner herein, on the
basis of personal knowledge. Their testimonies, not that of Capt. Mañoza, formed the
basis of the trial court's nding of probable cause for the issuance of a search warrant. As
Capt. Mañoza testified: 2
Q: When Clinton and James Pastrano went to your o ce on February 20,
1989, and told you that their father and his paramour possessed some
firearms, what steps did you take?
A: I applied for a Search Warrant and brought the two brothers before Judge
Durias.
xxx xxx xxx
Q: What happen[ed] after that, when you led this application for Search
Warrant with the Municipal Trial Court in Cities, Branch 1, Oroquieta City,
what happen[ed] when you filed?
A: Judge Durias examined the two witnesses, the two brothers, and after that,
he issued the Search Warrant.
Petitioner nally assails the absence of a written deposition showing that the judge
had examined the complainant and his witnesses by means of searching questions in
writing and under oath as required by Rule 126, §4 of the Rules on Criminal Procedure, to
wit:
§4. Examination of complainant, record. — The judge must, before
issuing the warrant, personally examine in the form of searching questions and
answers, in writing and under oath the complainant and any witnesses he may
produce on facts personally known to them and attach to the record their sworn
statements together with any affidavits submitted.
Rule 126, §4 indeed requires the examination of the complainant and his witnesses
to be put in writing and under oath. But although this is a ground for quashing a search
warrant in this case, petitioner did nothing to this end. He did not move to quash the
information before the trial court. 3 Nor did he object to the presentation of the evidence
obtained as being the product of an illegal search. In the case of Demaisip v. Court of
Appeals, 4 we held:
At any rate, objections to the legality of the search warrant and to the
admissibility of the evidence obtained thereby were deemed waived when no
objection to the legality of the search warrant was raised during the trial of the
case nor to the admissibility of the evidence obtained through said warrant.
Petitioner thus waived any objection based on the illegality of the search. As held in
People v. Omaweng, 5 the right to be secure against unreasonable searches and seizures,
like any other right, can be waived and the waiver may be made either expressly or
impliedly.
We nd that the prosecution clearly established the elements of the crime charged
and that the Court of Appeals and the trial court correctly found petitioner guilty beyond
reasonable doubt of the crime of Illegal Possession of Firearms and Ammunition.
We hold, however, that the penalty imposed on petitioner should be modi ed by
reducing it, in view of R.A. No. 8294, 6 which took effect on July 6, 1997. Penal statutes are
to be retroactively applied insofar as they are favorable to the accused. Under the new
statute, the penalty for Illegal Possession of Firearm has been reduced to prision
correccional maximum and a ne of not less than P15,000.00 with respect to the
possession of the .32 cal. revolver and to prision mayor minimum and a ne of P30,000.00
with respect to the possession of the .22 cal. Magnum revolver. Additional bene t would
redound to petitioner because the Indeterminate Sentence Law will have to be applied.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the
modi cation that petitioner is hereby SENTENCED to 4 years, 2 months, and 1 day of
prision correccional maximum, as minimum, to 6 years and 8 months of prision mayor
minimum, as maximum, and a ne of P30,000.00 for his illegal possession of the .22 cal.
Magnum revolver; and to 2 years, 4 months, and 1 day of prision correccional, as minimum,
to 4 years, 9 months, and 11 days of prision correccional, as maximum, and a ne of
P15,000.00 for his possession of the .32 cal. revolver.
SO ORDERED.
Regalado, Puno and Torres, Jr ., JJ ., concur.
Footnotes
1. CONST., Art. III, §2.
2. TSN, pp. 3-5, July 18, 1989.
3. People v. Ampil, 244 SCRA 135 (1995).

4. 193 SCRA 373, 382 (1991).
5. 213 SCRA 462 (1992).
6. Gonzales v. Court of Appeals, G.R. No. 95523, August 18, 1997.

THIRD DIVISION
[G.R. No. 193313. March 16, 2016.]
ERNIE IDANAN, NANLY DEL BARRIO and MARLON PLOPENIO ,

petitioners, vs. PEOPLE OF THE PHILIPPINES , respondent.
DECISION
PEREZ , J : p
Before us is a Decision 1 of the Court of Appeals dated 29 March 2010 in CA-G.R.

CR No. 30729 af rming the Decision 2 dated 22 February 2007 of the Regional Trial
Court (RTC), Branch 42 of Virac, Catanduanes nding petitioners Ernie Idanan (Idanan),
Nanly Del Barrio (Del Barrio) and Marlon Plopenio (Plopenio), together with Roberto
Vargas (Vargas) and Elmer Tulod (Tulod) guilty beyond reasonable doubt of illegal
possession of lumber under Section 68 of Presidential Decree (PD) No. 705, as
amended.
The petitioners were charged in the following Information:
That on or about the 16th day of October 2005 in the afternoon at
[B]arangay San Miguel, [M]unicipality of Panganiban, [P]rovince of
Catanduanes, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused[,] with intent to gain, conspiring, confederating and
helping one another did there and then (sic) willfully, unlawfully and feloniously
possess, and in control of twenty nine (29) pieces of narra lumber with gross
volume of 716.48 board feet or 1.69 cubic meter valued at Php275,844.80,
Philippine currency loaded in a truck bearing Plate No. UMU-424 without
necessary permit, license or documents required under the existing laws, rules
and regulations of the DENR to the damage and prejudice of the Republic of the
Philippines in the amount of Php275,844.80. 3
During trial, the prosecution presented the police of cers who apprehended
petitioners. Their version goes:
In the morning of 16 October 2005, the PNP headquarters of the Municipality of
Panganiban, Province of Catanduanes received an information that a group of illegal
loggers will be transporting narra itches 4 along Kilometer 11, 12 or 13 in Panganiban.
At around 3:30 p.m., the OIC Chief of Police P/Inspector Chito Oyardo and ve (5) other
policemen were patrolling Kilometer 12 in a motorbike and a compactor when they
spotted an idling Isuzu Elf truck loaded with lumber. The policemen approached the
truck. They found out that Idanan was the driver while Del Barrio and Plopenio were the
passengers. Vargas and Tulod were seen hauling lumber to be loaded into the truck.
Petitioners were not able to produce any document authorizing them to transport
lumber so they were placed under arrest. PO1 Ferdinand Bobiles took photographs of
the truck, the seized lumber and the accused. Thereafter, petitioners were rst brought
to the police station before they were brought to Camp Camacho in Virac,
Catanduanes. 5
The defense, on the other hand, denied the charge. Idanan, Del Barrio and
Plopenio testi ed that while they were traversing Kilometer 12, they were agged down
by policemen. One of them borrowed the truck. Idanan, the driver of the truck, obliged.
One of the policemen drove the truck for about 100 meters while petitioners trailed the
truck by foot. They then saw the policemen load narra itches into the truck. Not one of
them questioned the police out of fear. To petitioners' surprise, they were then arrested
and ordered to follow the policemen to the police station. 6 Vargas and Tulod claimed
that they were going to Caramoran and they hitched a ride with Idanan.
The defense presented a Certi cation signed by Punong Barangay Elias D.
Obierna (Elias) and Barangay Tanod Benito P. Obierna (Benito) certifying that the police
intercepted the truck driven by Idanan; that it was found empty; and that the police
of cers asked the driver of the truck to deliver the logs to the Municipal Of ce/Police
Office Station of Panganiban, Catanduanes. 7
The Obiernas initially denied that they executed the Certi cation. Elias later on
clari ed that while he signed the Certi cation, he was not present at the time of the
apprehension and had no personal knowledge that the truck was empty. Elias claimed
that Santiago Idanan forced him to sign the Certi cation. 8 Benito was present during
the incident. He allegedly saw rewood on two trucks and heard the policemen
instructing a certain son of Agoy to load the lumbers into the truck. 9
On 22 February 2007, the RTC found petitioners guilty beyond reasonable doubt
of illegal possession of lumber. The dispositive portion reads: AScHCD
WHEREFORE, the prosecution having proved the guilt of all the accused
beyond reasonable doubt, the Court hereby sentences accused Ernie Idanan,
Nanly del Barrio, Marlon Plopenio, Roberto Vargas and Elmer Tulod to suffer the
imprisonment ranging from ten (10) years and one (1) day of prision mayor, as
minimum, to sixteen (16) years, ve (5) months and eleven (11) days of
reclusion temporal, as maximum. The 29 pieces of narra lumber subject of this
case are forfeited in favor of the government. 10
The trial court relied on the presumption of regularity in the performance of
of cial duty in giving credence to the testimonies of the police of cers. Moreover, there
was no evidence manifesting ill motive on the part of the police of cers to falsely
testify against the accused. The trial court held that possession of 29 pieces of narra
lumber with gross volume of 1.69 cubic meters and estimated value of P275,844.80
without any documentation clearly constitutes an offense punishable under PD 705, as
amended.
Tulod and Vargas are at large. 11
On 29 March 2010, the Court of Appeals rendered its decision af rming
petitioner's conviction.
Petitioners maintain that the prosecution failed to prove beyond reasonable
doubt all the elements of the offense charged. Relying on an illegal possession of
rearm case where the Court held that to support a conviction, there must be
possession coupled with intent to possess, petitioners assert that their intent to
possess the subject narra lumber must be proven beyond reasonable doubt. In the
case of Tulod and Vargas, they claim that they were merely hired to load the lumber on
the truck. On the part of Idanan, he admitted that the truck was owned by his father.
Thus, their possession over the lumber is considered temporary, incidental, casual and
harmless. Del Barrio and Plopenio meanwhile were merely present at the crime scene.
Petitioners note the testimony of the Chief of Police is far from being candid and
straightforward when he had to be coached by the prosecutor on matters relative to
the arrest of the accused. Petitioners accuse the police of cers of planting evidence
against them because since the assumption of the Chief of Police to his post, he had
never apprehended anybody for illegal possession of lumber. Petitioners assert that
their testimonies are candid and spontaneous. They even cite the testimonies of the
barangay of cials as corroborative of their defense that the truck con scated by the
police officers had no narra lumber on it.
In their Comment, 12 the Of ce of the Solicitor General (OSG) noted that
petitioners were apprehended by the police of ces in agrante delicto as they were
transporting 29 pieces of narra lumber along Kilometer 12 in Barangay San Miguel,
Panganiban, Catanduanes without the required documentation. The OSG added that
mere possession of timber or other forest products without the accompanying legal
documents consummates the crime. Finally, the OSG defended the credibility of the
prosecution witnesses and assailed the defense of frame-up as weak. HESIcT
At the outset, we nd the testimonies of the prosecution witnesses credible.

Evidence to be believed must not only proceed from the mouth of a credible witness
but it must be credible in itself, such as the common experience and observation of
mankind can approve as probable under the circumstances. 13 Petitioners' statements
that they did not complain or put up any resistance when they were arrested despite
their innocence is contrary to human nature and experience. Petitioners should have at
least protested if they believed that they were not committing any crime. Moreover, the
allegation of "planted evidence" is unsubstantiated. There is no proof that that the
police had the ill-motive to falsely accuse and testify against petitioners, aside from the
unsubstantiated and far-fetched allegation that the police wanted to impress their
superiors. The presumption of regularity accorded to police officers is unrebutted.
Section 68 14 of PD 705, otherwise known as the Revised Forestry Code of the
Philippines, provides:
Sect. 68. Cutting, gathering and/or collecting timber or other products without
license. — Any person who shall cut, gather, collect, or remove timber or other
forest products from any forest land, or timber from alienable and disposable
public lands, or from private lands, without any authority under a license
agreement, lease, license or permit, shall be guilty of quali ed theft as de ned
and punished under Articles 309 and 310 of the Revised Penal Code; Provided,
That in the case of partnership, association or corporation, the of cers who
ordered the cutting, gathering or collecting shall be liable, and if such of cers
are aliens, they shall, in addition to the penalty, be deported without further
proceedings on the part of the Commission on Immigration and Deportation.
The Court shall further order the con scation in favor of the government of the
timber or forest products to cut, gathered, collected or removed, and the
machinery, equipment, implements and tools used therein, and the forfeiture of
his improvements in the area.
The same penalty plus cancellation of his license agreement, lease, license or
permit and perpetual disquali cation from acquiring any such privilege shall be
imposed upon any licensee, lessee, or permittee who cuts timber from the
licensed or leased area of another, without prejudice to whatever civil action the
latter may bring against the offender.
Section 68 penalizes three categories of acts: (1) the cutting, gathering,
collecting, or removing of timber or other forest products from any forest land without
any authority; (2) the cutting, gathering, collecting, or removing of timber from alienable
or disposable public land, or from private land without any authority; and (3) the
possession of timber or other forest products without the legal documents as required
under existing forest laws and regulations. 15
Petitioners were charged under the third category, i.e., of possessing and in
control of 29 pieces of narra lumber without the legal requirements as required under
existing forest laws and regulations.
Illegal possession of timber is an offense covered by special law and is malum
prohibitum. Thus, criminal intent is not an essential element of the offense. However,
the prosecution must prove intent to possess or animus possidendi. 16
Possession, under the law, includes not only actual possession, but also
constructive possession. Actual possession exists when the object of the crime is in
the immediate physical control of the accused. On the other hand, constructive
possession exists when the object of the crime 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. 17
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. 18
We nd that Idanan, Del Barrio, and Plopenio were, at the very least, in
constructive possession of the timber without the requisite legal documents.
Petitioners were found in the truck loaded with 29 pieces of narra lumber. Idanan
admitted to driving the truck while Del Barrio and Plopenio accompanied Idanan. They
claimed to have traveled for almost three hours just to retrieve the cellular phone of
Idanan's father from a certain Jojo Cabrera (Cabrera) in Barangay Poblacion,
Panganiban, Catanduanes. When pressed by the prosecutor if they managed to get the
cellphone, they replied that they failed to locate Cabrera. The three accused did not
protest despite seeing that the policemen allegedly load lumber into the truck. Neither
did they complain when they were subsequently arrested. Idanan was the driver. It is
presumed that he exercised full control of the vehicle that he is driving and that he knew
what its load was. Having offered no plausible excuse, petitioners failed to prove to our
satisfaction that they did not have the animus possidendi of the narra lumber.
Mere possession of timber or other forest products without the proper legal
documents, even absent malice or criminal intent, is illegal. It would make no difference
at all whether the ownership of the lumber pertains to only one accused. 19
The possession of lumber was made without any license or permit issued by any
competent authority.
Violation of Section 68 of PD 705, as amended, is punishable as Quali ed Theft
under Article 309 and 310 of the Revised Penal Code 20 thus:
Art. 309. Penalties. — Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods,
if the value of the thing stolen is more than 12,000 pesos but does not exceed
22,000 pesos; but if the value of the thing stolen exceeds the latter amount, the
penalty shall be the maximum period of the one prescribed in this paragraph,
and one year for each additional ten thousand pesos, but the total of the penalty
which may be imposed shall not exceed twenty years. In such cases, and in
connection with the accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be.
2. The penalty of prision correccional in its medium and maximum
periods, if the value of the thing stolen is more than 6,000 pesos but does not
exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium
periods, if the value of the property stolen is more than 200 pesos but does not
exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its
minimum period, if the value of the property stolen is over 50 pesos but does
not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but does
not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value does
not exceed 5 pesos.
7. Arresto menor or a ne not exceeding 200 pesos, if the theft is
committed under the circumstances enumerated in paragraph 3 of the next
preceding article and the value of the thing stolen does not exceed 5 pesos. If
such value exceeds said amount, the provisions of any of the ve preceding
subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a ne not exceeding 50 pesos,
when the value of the thing stolen is not over 5 pesos, and the offender shall
have acted under the impulse of hunger, poverty, or the dif culty of earning a
livelihood for the support of himself or his family.
Art. 310. Qualified theft. — The crime of quali ed theft shall be punished by the
penalties next higher by two degrees than those respectively speci ed in the
next preceding article . . . .
The Information alleged that the 29 pieces of lumber measuring 716.48 board
feet were valued at P275,884.80. Said amount was evidenced by the Statement of
Narra lumber materials 21 which was presented in evidence and testi ed to by Basil
Cesar Camba, the person who signed the Statement. Since the amount exceeds
P22,000.00, the penalty of prision mayor in its minimum and medium periods should be
imposed in its maximum period. To determine the additional years of imprisonment
prescribed in Article 309 (1), the amount of P22,000.00 should be deducted from
P275,884.80, thus, leaving the amount of P253,884.80. The net amount should then be
divided by P10,000.00, disregarding any amount below P10,000.00. The result is the
incremental penalty of twenty- ve (25) years which must then be added to the basic
penalty of the maximum period of prision mayor minimum and medium periods. The
penalty of prision mayor in its minimum and medium periods has a range of six years
(6) and one (1) day to ten (10) years. Its maximum period is eight (8) years, eight (8)
months and one (1) day to ten (10) years, and the incremental penalty is 25 years. Had
appellant committed simple theft, the penalty should have been twenty years of
reclusion temporal. In quali ed theft, the penalty is two degrees higher. Thus the
penalty of reclusion perpetua should be imposed. 22 TAIaHE
Pursuant to Article 5 23 of the Revised Penal Code, we recommend executive

clemency. In People v. Tomotorgo , 24 the Court recommended executive clemency to
appellant taking into consideration the evidence that he only intended to maltreat his
spouse resulting in her death, his manifest repentant attitude and remorse for his act. In
People v. Abano , 25 appellant was convicted of parricide and murder but the court
recommended executive clemency because the Court considered her emotional
suffering in the hands of her philandering husband. In Mendoza v. People , 26 petitioner
was convicted for failure to remit the contributions of his employer. Petitioner had
managed to settle his obligation but he was not eligible for condonation under Republic
Act No. 9003. While it was observed that the penalty imposed on petitioner is harsh, the
Court had to apply the law to its full extent. Thus, the Court recommended executive
clemency.
In this case, the resulting penalty is reclusion perpetua. This penalty will be
suffered by the driver and the helpers. The operator of the illegal logging business has
not been apprehended. While we sympathize with the plight of petitioners who were
merely following orders and were consequently caught in possession of the lumber, we
must still apply the law in full force. Dura lex sed lex. But considering the facts about
petitioners' participation in the crime, and guided by jurisprudence on instances when
the facts of the crime elicited the Court's compassion for the accused, we recommend
executive clemency.
WHEREFORE , the petition is hereby DENIED . The 29 March 2010 Decision of
the Court of Appeals in CA-G.R. CR No. 30729 is AFFIRMED with MODIFICATION .
Petitioners ERNIE IDANAN, NANLY DEL BARRIO and MARLON PLOPENIO are hereby
found GUILTY beyond reasonable doubt for violation of Section 68 of Presidential
Decree No. 705, as amended, and sentenced to suffer the penalty of reclusion perpetua.
Pursuant to Article 5 of the Revised Penal Code, the Court shall TRANSMIT the case to
the Chief Executive, through the Department of Justice, and RECOMMENDS the grant
of executive clemency to petitioners.
SO ORDERED.
Velasco, Jr., Peralta, Reyes and Jardeleza, JJ., concur.
Footnotes
1. Rollo, pp. 24-42; Penned by Associate Justice Magdangal M. De Leon with Associate
Justices Romeo F. Barza and Stephen C. Cruz concurring.
2. Records, pp. 225-235; Presided by Judge Genie G. Gapas-Agbada.

3. Id. at 11.
4. A itch is a slab of timber cut from a tree trunk while a lumber is a processed log or timber.
For purposes of discussion, flitches and lumber shall be used interchangeably.
5. TSN, 16 May 2006, pp. 17-26.
6. TSN, 18 July 2006, pp. 6-9.
7. Records, pp. 124 and 229.
8. TSN, 5 October 2006, p. 25.

9. Id. at 5 and 8.
10. Records, pp. 234-235.
11. Id. at 252.
12. Rollo, pp. 58-77.
13. People v. Capuno, 655 Phil. 226, 224 (2011).

14. Re-numbered as Section 77 under Republic Act No. 7161, Section 7.
15. Merida v. People, 577 Phil. 243, 253 (2008).

16. Villarin v. People, 672 Phil. 155, 174 (2011).
17. Id.
18. People v. Macabre , 613 Phil. 474, 483 (2009) citing People v. Tira , 474 Phil. 152, 174
(2004).
19. Monge v. People, 571 Phil. 472, 479 (2008).
20. Taopa v. People, 592 Phil. 341, 345-346 (2008).
21. Records, p. 3.
22. People v. Cristobal , 662 Phil. 164, 187-188 (2011); People v. Tanchanco , 686 Phil. 119,
136-137 (2012).
23. ARTICLE 5. Duty of the Court in Connection with Acts Which Should Be Repressed but
Which are Not Covered by the Law, and in Cases of Excessive Penalties. — Whenever
a court has knowledge of any act which it may deem proper to repress and which is
not punishable by law, it shall render the proper decision, and shall report to the Chief
Executive, through the Department of Justice, the reasons which induce the court to
believe that said act should be made the subject of penal legislation.
In the same way the court shall submit to the Chief Executive, through the Department of
Justice, such statement as may be deemed proper, without suspending the execution
of the sentence, when a strict enforcement of the provisions of this Code would result
in the imposition of a clearly excessive penalty, taking into consideration the degree
of malice and the injury caused by the offense.
24. 220 Phil. 617, 624 (1985).

25. 229 Phil. 551 (1986).
26. 675 Phil. 759 (2011).

THIRD DIVISION
[G.R. No. 212171. September 7, 2016.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. MERCURY DELA

CRUZ alias "DEDAY ", accused-appellant.
DECISION
PEREZ , J : p
We resolve the appeal, led by accused-appellant Mercury Dela Cruz alias

"Deday," from the 27 September 2013 Decision 1 of the Court of Appeals (CA) in CA-
G.R. CR.-H.C. No. 01103.
In a Decision 2 dated 27 November 2008, the Regional Trial Court (RTC), Branch
58, Cebu City, found the accused-appellant guilty of illegal sale of shabu under Sections
5, Article II of Republic Act (R.A.) No. 9165 3 and sentenced him to suffer the penalty life
imprisonment and to pay a fine of P500,000.00.
The RTC gave full credence to the testimonies of Senior Police Of cer (SPO) 2
Alejandro Batobalanos, Police Of cer (PO) 1 Angsgar Babyboy A. Reales, and PO1
Leopoldo Bullido who conducted the buy-bust operation against the accused-appellant,
and rejected the self-serving defenses of denial and alibi of accused-appellant and her
live-in partner. The RTC noted that the categorical af rmation of accused-appellant and
her live-in partner that the arresting of cers did not demand anything from them in
exchange for the accused-appellant's liberty created the presumption that the arresting
officers were performing their official functions regularly. 4
On intermediate appellate review, the CA affirmed in toto the RTC's ruling. The CA
agreed with the RTC in giving weight to the testimonies of the prosecution witnesses,
and held that the arresting of cers complied with the proper procedure in the custody
and disposition of the seized drugs.
Our Ruling
We dismiss the appeal and affirm the accused-appellant's guilt.
We nd no reason to reverse the RTC's ndings, as af rmed by the CA. In the
same manner as the lower courts, we give full credit to the positive, spontaneous and
straightforward testimonies of the police of cers pointing to accused-appellant as the
seller and possessor of the confiscated shabu.
We have consistently held that in order to secure a conviction for illegal sale of
dangerous drugs, it is necessary that the prosecution is able to establish the following
essential elements: (1) the identity of the buyer and the seller, the object of the sale and
its consideration; and (2) the delivery of the thing sold and its payment. What is
material is the proof that the transaction or sale actually took place, coupled with the
presentation in court of the corpus delicti as evidence. The delivery of the illicit drug to
the poseur-buyer and the receipt by the seller of the marked money successfully
consummate the buy-bust transaction. 5 Here, all the aforesaid elements necessary for
accused-appellant's prosecution have been suf ciently complied with, indubitably
establishing that she has indeed committed the crime. PO1 Reales testi ed in detail
how he was introduced by the con dential informant to accused-appellant. The
con dential informant, thereafter, manifested to the accused-appellant their intention
to buy shabu worth P200.00. Upon giving the accused-appellant the 2 marked P100.00
bills, she, in return, handed to PO1 Reales a small plastic containing white crystalline
substance. The plastic sachet later on tested positive for the presence of
Methamphetamine Hydrochloride. The testimony given by PO1 Reales was
corroborated by SPO1 Batobalonos and PO1 Bullido in all material details. It is
therefore clear beyond any shadow of doubt that the buy-bust operation had been
substantially completed and consummated. The fact that accused-appellant was able
to evade the arrest immediately after the sale and that she was arrested only after, by
virtue of a warrant of arrest, did not change the fact that the crime she committed
earlier had been consummated.
We agree with the lower courts that in the absence of any intent or ill-motive on
the part of the police of cers to falsely impute commission of a crime against the
accused-appellant, the presumption of regularity in the performance of of cial duty is
entitled to great respect and deserves to prevail over the bare, uncorroborated denial
and self-serving claim of the accused of frame-up. 6
Also, we reject the appellant's contention that the police of cers failed to comply
with the provisions of Section 21, paragraph 1 of R.A. No. 9165, 7 which provides for
the procedure in the custody and disposition of seized drugs. CAIHTE
After a careful perusal of the records, we agree with the CA that the prosecution
had established the unbroken chain of custody over the seized drugs. This was
established through the testimonies of the prosecution witnesses, to wit: "At around
7:15 o'clock in the evening of November 10, 2006, PO3 Batobalonos, PO1 Reales, PO1
Bullido and their civilian asset proceeded to Sitio Cogon, A. Lopez St., Barangay
Labangon. When the team went inside the interior portion of Sitio Cogon, PO1 Reales
together with the civilian asset approached the house of Dela Cruz, while PO3
Batobalonos and PO1 Bullido were strategically hidden more or less ten (10) meters
away. The civilian asset called Dela Cruz and told her that they will buy shabu worth
P200.00. Thereafter, Dela Cruz handed PO1 Reales a small plastic containing white
crystalline substance and in exchange he handed to the former the P200.00 bills. Upon
getting hold of the money, PO3 Batobalonos and PO1 Bullido, who saw the
consummation of the transaction rushed to the scene. When PO3 Batobalonos got hold
of Dela Cruz, the latter shouted for help and resisted arrest. Dela Cruz was able to run
and so the team chased her, however, her neighbor Arthur Tabasa Ortega ("Ortega")
blocked their way. The team introduced themselves as policemen but Ortega did not
listen, so PO3 Batobalonos red a warning shot as the people likewise started to
gather around them. Meanwhile, Dela Cruz was able to evade arrest. The team then
arrested Ortega for obstruction of justice.
On their way to the police station aboard their patrol car, PO1 Reales handed to
PO3 Batobalonos the small plastic containing white crystalline substance which he
purchased from Dela Cruz. Thereafter, upon arrival at the police station, PO3
Batobalonos marked the seized item with "DDM 11/10/06."
Afterwards, a Request for Laboratory Examination of the seized item was
prepared by PO3 Batobalonos. The Request and the seized item were delivered to the
Regional Crime Laboratory Of ce-7, Camp Sotero Cabahug, Gorordo Avenue, Cebu City
by PO1 Reales at around 1:10 o'clock in the morning of November 11, 2006.
Thereafter Forensic Chemist PCI Salinas issued Chemistry Report No. D-1771-
2006," 8 with the nding that the specimen gave positive result for the presence of
Methamphetamine hydrochloride. 9
The con scated dangerous drug which also constitutes the corpus delicti of the
crime was validly considered by the courts in arriving at the decision despite the fact
that the forensic chemist who examined it did not testify in court. The relevant portion
of the RTC decision reads:
The presentation of the testimony of Forensic chemist PSI MUTCHIT
G. SALINAS was dispensed with, the defense having ADMITTED : the
existence of the Letter Request dated November 10, 2006 from the PNP Station
10; the existence of one (1) small plastic pack containing white crystalline
substance which is the subject for examination, however DENIED as to the
ownership of said evidence; the existence and due execution of the Chemistry
Report No. D-1771-2006 executed by witness Mutchit G. Salinas; that the
intended witness is and expert witness who examined the specimen found to
contain the presence of Methylamphetamine hydrochloride locally known as
shabu, a dangerous drug. 10
Anent accused-appellant's contention that the drugs were marked not at the
place where she was apprehended but at the police station and that there was no
physical inventory made on the seized item nor was it photographed, we nd the same
untenable. The alleged non-compliance with Section 21 of R.A. No. 9165 was not fatal
to the prosecution's case because the apprehending team properly preserved the
integrity and evidentiary value of the seized drugs. 11
Relevant to the instant case is the procedure to be followed in the custody and
handling of the seized dangerous drugs as outlined in Section 21 (a), Article II of the
Implementing Rules and Regulations of R.A. No. 9165, which states:
(a) The apprehending of cer/team having initial custody and control
of the drugs shall, immediately after seizure and con scation, physically
inventory and photograph the same in the presence of the accused or the
person/s from whom such items were con scated and/or seized, or his/her
representative or counsel, a representative from the media and the Department
of Justice (DOJ), and any elected public of cial 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 of ce
of the apprehending of cer/team, whichever is practicable, in case of
warrantless seizures; Provided, further, that non-compliance with these
requirements under justi able grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the apprehending
of cer/team, shall not render void and invalid such seizures of and custody
over said items[.] DETACa
The last part of the aforequoted issuance provided the exception to the strict
compliance with the requirements of Section 21 of R.A. No. 9165. Although ideally the
prosecution should offer a perfect chain of custody in the handling of evidence,
"substantial compliance with the legal requirements on the handling of the seized item"
is sufficient. 12 This Court has consistently ruled that even if the arresting of cers failed
to strictly comply with the requirements under Section 21 of R.A. No. 9165, such
procedural lapse is not fatal and will not render the items seized inadmissible in
evidence. 13 What is of utmost importance is the preservation of the integrity and
evidentiary value of the seized items, as the same would be utilized in the determination
of the guilt or innocence of the accused. 14 In other words, to be admissible in evidence,
the prosecution must be able to present through records or testimony, the
whereabouts of the dangerous drugs from the time these were seized from the
accused by the arresting of cers; turned-over to the investigating of cer; forwarded to
the laboratory for determination of their composition; and up to the time these are
offered in evidence. For as long as the chain of custody remains unbroken, as in this
case, even though the procedural requirements provided for in Sec. 21 of R.A. No. 9165
were not faithfully observed, the guilt of the accused will not be affected. 15
In the instant case, the failure to strictly comply with the requirements of Sec. 21
of R.A. No. 9165 was satisfactorily explained by the apprehending of cers. They
testi ed that a commotion erupted when accused-appellant resisted and shouted for
help while she was being arrested. The commotion eventually gave accused-appellant
the opportunity to run and elude arrest. The arresting of cers further alleged that the
people who gathered around them were already aggressive prompting them to decide
to immediately proceed to the police station for their safety. 16 In fact, the arresting
of cers even had to re a warning shot and arrest Arthur Tabasa Ortega, the person
who intervened in the arrest of accused-appellant, in order for them to pacify the people
around them.
The integrity of the evidence is presumed to have been preserved unless there is
a showing of bad faith, ill will, or proof that the evidence has been tampered with.
Accused-appellant bears the burden of showing that the evidence was tampered or
meddled with in order to overcome the presumption of regularity in the handling of
exhibits by public of cers and the presumption that public of cers properly discharged
their duties. 17 Accused-appellant in this case failed to present any plausible reason to
impute ill motive on the part of the arresting of cers. Thus, the testimonies of the
apprehending of cers deserve full faith and credit. 18 In fact, accused-appellant did not
even question the credibility of the prosecution witnesses. She simply anchored her
defense on denial and alibi.
We af rm the penalties imposed as they are well within the ranges provided by
law. Section 5, Article II of R.A. No. 9165 prescribes a penalty of life imprisonment to
death 19 and a ne ranging from P500,000.00 to P10,000,000.00 for the sale of any
dangerous drug, regardless of the quantity or purity involved.
WHEREFORE , the decision dated 27 September 2013 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 01103 is hereby AFFIRMED .
SO ORDERED . aDSIHc
Velasco, Jr., Peralta and Leonen, ** JJ., concur.

Reyes, * J., is on wellness leave.
Footnotes
* On Wellness Leave.
** Additional Member per Raffle dated 8 August 2016.
1. Rollo, pp. 4-21; Penned by Associate Justice Carmelita Salandanan-Manahan with

Associate Justices Ramon Paul L. Hernando and Ma. Luisa C. Quijano-Padilla
concurring.
2. Records, pp. 67-74; Docketed as Criminal Case No. CBU-80787.

3. Otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."
4. Records, pp. 73-74.
5. People v. Midenilla , 645 Phil. 557, 601 (2010) citing People v. Guiara , 616 Phil. 290, 302
(2009) further citing People v. Gonzales, 430 Phil. 504, 513 (2002).
6. People v. Dumlao, 584 Phil. 732, 740 (2008).
7. Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous
Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. — . . .
(1) The apprehending team having initial custody and control of the drugs shall
immediately after seizure and con scation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
con scated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public of cial who
shall be required to sign the copies of the inventory and be given a copy thereof[.]
8. Rollo, pp. 8-9. (Emphasis supplied)

9. Records, p. 9; As evidenced by Chemistry Report No. D-1771-2006.
10. Id. at 67.

11. In People v. Sanchez (590 Phil. 214, 234 [2008]), we held that "non-compliance with the
strict directive of Section 21 of R.A. No. 9165 is not necessarily fatal to the
prosecution's case; [but these lapses] must be recognized and explained in terms of
their justi able grounds and the integrity and evidentiary value of the evidence seized
must be shown to have been preserved."
12. People v. Cortez, 611 Phil. 360, 381 (2009).
13. People v. Almodiel, 694 Phil. 449, 467 (2012); People v. Campos, 643 Phil. 668, 673 (2008)
citing People v. Concepcion, 578 Phil. 957, 971 (2008).
14. People v. Magundayao , 683 Phil. 295, 321 (2012); People v. Le , 636 Phil. 586, 598 (2010)
citing People v. De Leon , 624 Phil. 786, 801 (2010) further citing People v. Naquita ,
582 Phil. 422, 442 (2008); People v. Concepcion, 578 Phil. 957, 971 (2008).
15. People v. Manlangit , 654 Phil. 427, 440-441 (2011) citing People v. Rosialda , 643 Phil.
712, 726 (2010) further citing People v. Rivera, 590 Phil. 894, 912-913 (2008).
16. TSN, 16 September 2008, p. 6; TSN, 21 October 2009, p. 6.

17. People v. Miranda, 560 Phil. 795, 810 (2007).
18. See People v. Macabalang, 538 Phil. 136, 155 (2006).
19. The imposition of the death penalty has been proscribed with the effectivity of R.A. No.
9346, otherwise known as "An Act Prohibiting the imposition of Death Penalty in the
Philippines."

THIRD DIVISION
[G.R. No. 210710. July 27, 2016.]
PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. LUISITO

GABORNE Y CINCO , accused-appellant.
DECISION
PEREZ , J : p
Before the Court is an appeal from the Decision 1 of the Court of Appeals (CA)
dated 29 July 2013 in CA-G.R. CR HC No. 01183, af rming the Decision 2 of the
Regional Trial Court (RTC), Branch 33, Calbiga, Samar which found appellant Luisito
Gaborne y Cinco guilty of the crime of Murder with the use of Unlicensed Firearm, as
de ned in Article 248 of the Revised Penal Code (RPC) as amended by Sec. 6 of
Republic Act (R.A.) No. 7659, and Frustrated Murder as de ned in Article 248 in relation
to Article 50 of the RPC, respectively.
Together with two others, appellant was charged with Murder with the use of
Unlicensed Firearm and Frustrated Murder in the following Informations:
Criminal Case No. CC-2007-1640
That on or about the 2nd day of February 2007, at about 11:00 o'clock in
the evening more or less, at Brgy. Mugdo, Hinabangan, Samar, Philippines, and
within the jurisdiction of this Honorable Court, the above named accused,
conspiring, confederating, mutually helping one another, with deliberate intent to
kill, and with treachery and evident premeditation, which qualify the offense into
murder, did there, willfully, unlawfully, and feloniously, shot (sic) Sixto Elizan y
Herrera, with the use of an unlicensed rearm a caliber [.]45 pistol, a special
aggravating circumstance pursuant to RA 8294, which accused have provided
themselves for the purpose, thereby hitting and in icting upon the said Sixto
Elizan y Herrera fatal gun shot wounds on the different parts of his body, which
gun shot wounds caused his instantaneous death. 3
Criminal Case No. CC-2007-1650
That on or about the 2nd day of February 2007, at around 11:00 o'clock
in the evening more or less, at Brgy. Mugdo, Municipality of Hinabangan,
Province of Samar, Philippines, and within the jurisdiction of this Honorable
Court, the above named accused, conspiring, confederating, mutually helping
one another, with deliberate intent to kill, and with treachery, which quali es the
offense to murder, did, then and there, willfully, unlawfully and feloniously shot
[sic] the victim, Rey Perfecto C. de Luna, with the use or a caliber [.]45 pistol, an
unlicensed firearm, a special aggravating circumstance pursuant to Rep. Act No.
8294, with which the accused have provided themselves for the purpose,
thereby inflicting upon the victim the following wounds, to wit:
- Gun shot wound (R) back penetrating (R) chest, lacerating
diaphragm, (R) lobe of the liver, thru and thru and greater
omentum with massive hemoperitoneum
- Gun shot wound (R) para spinal area at L2 penetrating
abdomen perforating ileum thru and thru
thus, accused have performed all the acts of execution which should have
produced the crime of murder as a consequence but which nevertheless did not
produce it by reason of some cause independent of the will of the accused, that
is, the timely medical treatment/intervention rendered to the victim at Saint
Paul's Hospital, Tacloban City. 4
On arraignment, appellant entered a plea of NOT GUILTY 5 for both charges. Trial
on the merits ensued thereafter.
The Facts
The antecedent facts culled from the Appellee's Brief 6 and the records of the
case are summarized as follows:
On 2 February 2007 at around 10:30 in the evening, Rey Perfecto De Luna (De
Luna) and Sixto Elizan 7 (Elizan) entered a videoke bar 8 at Barangay Mugdo,
Hinabangan, Samar. 9 Noli Abayan (Abayan), appellant and Joselito Bardelas (Bardelas)
followed five minutes thereafter. 10
While Elizan and De Luna were drinking, singing and merely having fun, four
successive gunshots 11 were red through the window. Because of this, Elizan and De
Luna were hit from behind. 12 Later on, De Luna 13 and Marialinisa Pasana 14 (Pasana)
saw appellant, who was then wearing a black t-shirt and a black cap, holding a gun
aimed at their location. Pasana also saw accused-appellant and Bardelas escape after
the incident. 15 ATICcS
Elizan and De Luna were brought to St. Paul's Hospital at Tacloban City. 16
Unfortunately, Elizan was pronounced dead upon arrival. De Luna, on the other hand,
survived. 17
Appellant steadfastly denied the accusations. According to him, he and his
companions ordered for bottles of beer. However, when they tried to order for more
bottles, the waitress refused to give them their order unless they pay for their previous
orders rst. 18 While Abayan was explaining to the father of the owner of the videoke
bar, appellant and Bardelas went out to urinate, 19 however, the waitress locked the
front door. 20 While standing outside, he heard the waitress utter the words, "If you will
not pay, I [will] have you killed, all of you, right this moment." 21 He also consistently
contend that it was a man wearing black shirt and camou age pants who red shots to
the videoke bar, 22 not him.
The following day, appellant and Bardelas were arrested and underwent paraf n
test. 23
Ruling of the Regional Trial Court
On 12 March 2010, the RTC rendered a joint judgment nding accused-appellant
guilty of the two (2) charges of Murder with the use of Unlicensed Firearm and
Frustrated Murder. The dispositive portion of the decision reads:
WHEREFORE , premises considered, the [c]ourt nds the co-accused
LUISITO GABORNE y CINCO GUILTY BEYOND REASONABLE DOUBT as
principal in the crimes of:
A. Murder with the Use of an Unlicensed Firearm under Art. 248 of the Revised
Penal Code in Criminal Case No. CC-2007-1640 and considering the
presence of one (1) aggravating circumstance without any mitigating
circumstance to offset it, hereby sentences him to suffer imprisonment of
RECLUSION PERPETUA; to pay the Heirs of Sixto Elisan y Herrera
Php75,000.00 as civil indemnity for his death; Php50,000.00 in moral
damages and Php25,000.00 in exemplary damages and to pay the costs
of this suit.
B. Frustrated Murder penalized under Art. 248 in relation to Art. 50 of the
Revised Penal Code in Criminal Case No. CC-2007-1650 and considering
the presence of one (1) aggravating circumstance without any mitigating
circumstance to offset it hereby sentences him to suffer imprisonment of
an indeterminate penalty ranging from ELEVEN (11) YEARS of Prision
Mayor as minimum to EIGHTEEN (18) YEARS of Reclusion Temporal as
maximum, to pay Perfecto de Luna Php264,866.58 as civil liability without
subsidiary imprisonment in case of insolvency and to pay the costs of this
suit.
The accused who underwent preventive imprisonment since February 3,
2007 shall be credited with the full time during which he was deprived of his
liberty if he agreed voluntarily and in writing to abide by the same disciplinary
rules imposed upon convicted prisoners otherwise he will be entitled to only
four-fifths (4/5) thereof.
Because the prosecution absolutely failed to prove guilt of accused NOLI
ABAYAN y LARGABO and co-accused JOSELITO BARDELAS y BACNOTAN from
the instant criminal charges, they are ACQUITTED in these cases. No civil
liability is assessed against them.
Because the said accused are detained, the Provincial Warden of Samar
are hereby ordered to release the said accused from detention unless they are
held for some other cause or ground. 24
Ruling of the Court of Appeals
The CA found no merit in appellant's arguments. It pointed out that appellant is
estopped from questioning the legality of his arrest as it was raised for the first time on
appeal. 25 Thus, the appellate court was fully convinced that there is no ground to
deviate from the findings of the RTC. The dispositive portion of the decision reads:
WHEREFORE , the instant appeal is hereby DENIED. The Joint Judgment
dated March 12, 2010 rendered by Branch 33, Regional Trial Court of Calbiga,
Samar, 8th Judicial Region in Criminal Case Nos. [CC-] 2007-1640 and [CC-
]2007-1650 is hereby AFFIRMED WITH MODIFICATION as to the award of
damages, to wit:
1. The award of civil indemnity in Criminal Case No. [CC-]2007-1640 is
affirmed;
2. The award of moral damages in the amount of Php50,000.00 in Criminal
Case No. [CC-]2007-1640 is affirmed;
3. The award of exemplary damages in the amount of Php25,000.00 in
Criminal Case No. [CC-]2007-1640 is affirmed;
4. In Criminal Case No. [CC-]2007-1650, accused-appellant is ordered to pay
moral damages to the private offended party, Rey Perfecto De Luna, in the
amount of Php40,000.00;
5. In Criminal Case No. [CC-]2007-1650, accused appellant is likewise ordered
to pay exemplary damages to the private offended party, Rey Perfecto De
Luna, in the amount of Php20,000.00; and
6. Accused-appellant is further ordered to additionally pay the private
offended parties in the two criminal cases, Rey Perfecto De Luna and the
heir/s of Sixto Elizan, interest on all damages at the legal rate of six
percent (6%) from the date of nality of this judgment until the amounts
awarded shall have been fully paid. 26 TIADCc
Appellant appealed the decision of the CA. The Notice of Appeal was given due
course and the records were ordered elevated to this Court for review. In a Resolution
27 dated 19 February 2014, this Court required the parties to submit their respective
supplemental briefs. Both parties manifested that they are adopting all the arguments
contained in their respective briefs in lieu of filing supplemental briefs. 28
Our Ruling
We nd that the degree of proof required in criminal cases has been met in the
case at bar. Appellant's defenses of denial and alibi are bereft of merit.
Assailing the legality of arrest should
be made before entering a plea
Before anything else, we resolve the procedural issue raised by the appellant. 29
Any objection involving a warrant of arrest or the procedure by which the court
acquired jurisdiction over the person of the accused must be made before he enters his
plea; otherwise, the objection is deemed waived. 30 In People v. Velasco , 31 this Court
held that the accused is estopped from assailing the legality of his arrest for his failure
to move for the quashal of the Information before arraignment. In this case, appellant
only questioned the legality of his arrest for the first time on appeal. 32
Furthermore, even granting that indeed there has been an irregularity in the arrest
of the appellant, it is deemed cured by his voluntary submission to the jurisdiction of
the trial court over his person. 33 Thus, appellant is deemed to have waived his
constitutional protection against illegal arrest 34 when he actively participated in the
arraignment 35 and trial of this case. 36
Elements of Murder and Frustrated
Murder were established
This Court nds that the circumstance of treachery should be appreciated,
qualifying the crime to Murder. According to the Revised Penal Code:
ARTICLE 248. Murder. — Any person who, not falling within the provisions of
Article 246 shall kill another, shall be guilty of murder and shall be punished by
reclusion temporal in its maximum period to death, if committed with any of the
following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid
of armed men, or employing means to weaken the defense or of means or
persons to insure or afford impunity.
2. In consideration of a price, reward or promise.
3. By means of inundation, re, poison, explosion, shipwreck,
stranding of a vessel, derailment or assault upon a street car or locomotive, fall
of an airship, by means of motor vehicles, or with the use of any other means
involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive cyclone,
epidemic, or any other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person or corpse.
Thus, the elements of murder are: (1) that a person was killed; (2) that the
accused killed him or her; (3) that the killing was attended by any of the qualifying
circumstances mentioned in Article 248 of the RPC; and (4) that the killing is not
parricide or infanticide. 37
Furthermore, there is treachery when the offender commits any of the crimes
against the person, employing means, methods or forms in the execution thereof, which
tend directly and specially to insure its execution, without risk to himself arising from
the defense which the offended party might make. 38
The requisites of treachery are:
(1) The employment of means, method, or manner of execution which will
ensure the safety of the malefactor from defensive or retaliating acts on
the part of the victim, no opportunity being given to the latter to defend
himself or to retaliate; and
(2) Deliberate or conscious adoption of such means, method, or manner of
execution. 39
In this case, the hapless victims were merely drinking and singing in-front of the
videoke machine when shot by the appellant. The ring was so sudden and swift that
they had no opportunity to defend themselves or to retaliate. Furthermore, appellant's
acts of using a gun and even going out of the videoke bar evidently show that he
consciously adopted means to ensure the execution of the crime.
In addition, the lower courts appropriately found appellant liable for the crime of
Frustrated Murder.
A felony is frustrated when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, do not produce it
by reason of causes independent of the will of the perpetrator. 40
Dr. Angel Cordero M.D. categorically said that De Luna could have died because
of the wounds if the surgery was not conducted timely. 41 Hence, appellant performed
all the acts of execution which could have produced the crime of murder as a
consequence, but nevertheless, did not produce it by reason of a cause independent of
his will, which is, in this case, the timely and able medical attendance rendered to De
Luna. AIDSTE
The defense of denial cannot be given

more weight over a witness' positive
identification
Appellant denies the accusations on the ground that he has no motive to kill
Elizan and injure De Luna. This alibi is bereft of merit. Intent is not synonymous with
motive. Motive alone is not a proof and is hardly ever an essential element of a crime. 42
As a general rule, proof of motive for the commission of the offense charged does not
show guilt and absence of proof of such motive does not establish the innocence of
accused for the crime charged such as murder. 43 In Kummer v. People , 44 this Court
held that motive is irrelevant when the accused has been positively identi ed by an
eyewitness.
Evidently, accused-appellant's intent to kill was established beyond reasonable
doubt. This can be seen from his act of shooting Elizan and De Luna from behind with a
rearm while they were innocently singing and drinking. Intent to kill was also manifest
considering the number of gun shot wounds sustained by the victims. 45
In the instant case, Pasana and De Luna positively identi ed accused-appellant
as the person who fired shots during the incident:
Pasana's testimony:
Q: Can you recall who among the five (5) went out?
A: Yes, Ma'am.
Q: Of the two (2) among the ve (5) who went out, are these two (2) people or
persons here in court right now?
A: Yes, Ma'am.
Q: And who are these two (2) persons you are referring to, can you point it out
to the Honorable Court if they are here in [c]ourt right now?
A: That person, Ma'am.
Interpreter:
Witness, Your Honor, is pointing to a person who earlier identi ed himself as
Luisito Gaborne.
xxx xxx xxx
Q: Point specifically, who among those persons?
A: That person, Ma'am.
Interpreter:
Witness, Your Honor, is pointing to a person who identi ed himself earlier as
Luisito Gaborne. 46
De Luna's Testimony:
Q: How about the appearance of the guy whom you said holding a gun, can
you recall?
A: I can recall him if he is inside the court, ma'am.
Q: Can you point it out to the court, the other guy whom you saw at the
videoke bar?
A: Yes, ma'am, if I can go with him in a short distance, I can point him.
Q: Can you point him?
A: (The witness stood up and approach (sic) the accused' bench and pointed
to a person and when asked his name answered to (sic) : Luisito Gaborne)
Q: You said that there was also another guy by the window? (the court butt-in
[sic])
THE COURT:
Q: Excuse me, this man who answered Luisito Gaborne was the one holding
the fire arm?
A: Yes, your Honor. 47
This Court gives the highest respect to the RTC's evaluation of the testimony of
the witnesses, considering its unique position in directly observing the demeanor of a
witness on the stand. From its vantage point, the trial court is in the best position to
determine the truthfulness of witnesses. 48
It is doctrinally entrenched in our jurisprudence 49 that the defense of denial is
inherently weak because it can easily be fabricated. Such defense becomes unworthy
of merit if it is established only by the accused themselves and not by credible persons.
Thus, this Court agrees with the lower courts in giving the positive identi cation of the
eyewitnesses more weight than appellant's defense of denial.
Paraffin Tests are not conclusive
The positive identi cation made by the prosecution witnesses bears more
weight than the negative paraffin test result conducted the day after the incident.
Paraf n tests, in general, have been rendered inconclusive by this Court.
Scienti c experts concur in the view that the paraf n test was extremely unreliable for
use. It can only establish the presence or absence of nitrates or nitrites on the hand;
however, the test alone cannot determine whether the source of the nitrates or nitrites
was the discharge of a rearm. The presence of nitrates should be taken only as an
indication of a possibility or even of a probability but not of infallibility that a person has
red a gun, since nitrates are also admittedly found in substances other than
gunpowder. 50
In this case, prosecution witness, Pasana 51 and the victim himself, De Luna, 52
testi ed in the trial court that it was indeed the appellant who was holding the gun
during the incident. It should also be considered that appellant was arrested the day
after the incident. 53 Thus, it is possible for appellant to re a gun and yet bear no
traces of nitrate or gunpowder as when the hands are bathed in perspiration or washed
afterwards. 54 AaCTcI
Corpus delicti of the crime can be

established by testimony
With regard to the appreciation of the aggravating circumstance of the use of an
unlicensed rearm, we agree with the trial court and the appellate court that the same
must be appreciated in the instant case. In People v. Lualhati , this Court ruled that in
crimes involving unlicensed rearm, the prosecution has the burden of proving the
elements thereof, which are: (1) the existence of the subject rearm and (2) the fact
that the accused who owned or possessed the rearm does not have the
corresponding license or permit to possess the same. 55
Appellant's contention that the corpus delicti was not established for the reason
that the rearm used was not presented as evidence is not persuasive. In People v.
Orehuela, 56 this Court held that the existence of the rearm can be established by
testimony, even without the presentation of the said rearm. In the present case, the
testimonies of Pasana and De Luna indubitably demonstrated the existence of the
rearms. Furthermore, the certi cation 57 from the Philippine National Police that
appellant is not a rearm license holder of any caliber proves that he is not licensed to
possess the same. Thus, the prosecution was able to prove the existence of the rearm
and that the appellant is not licensed to possess the same notwithstanding the fact
that the firearm used was not presented as evidence.
Illegal Possession of Firearm as an
aggravating circumstance
in the crimes of Murder and
Frustrated Murder
The CA appropriately appreciated the use of an unlicensed rearm as an
aggravating circumstance in the crimes of Murder and Frustrated Murder. Under R.A.
No. 1059, use of loose rearm in the commission of a crime, like murder, shall be
considered as an aggravating circumstance. 58
In view of the amendments introduced by R.A. No. 8294 and R.A. No. 10591, to
Presidential Decree No. 1866, separate prosecutions for homicide and illegal
possession are no longer in order. Instead, illegal possession of rearm is merely to be
taken as an aggravating circumstance in the crime of murder. 59 It is clear from the
foregoing that where murder results from the use of an unlicensed rearm, the crime is
not quali ed illegal possession but, murder. In such a case, the use of the unlicensed
rearm is not considered as a separate crime but shall be appreciated as a mere
aggravating circumstance. Thus, where murder was committed, the penalty for illegal
possession of rearms is no longer imposable since it becomes merely a special
aggravating circumstance. 60 The intent of Congress is to treat the offense of illegal
possession of rearm and the commission of homicide or murder with the use of
unlicensed firearm as a single offense. 61
In the case at hand, since it was proven that accused-appellant was not a
licensed rearm holder, 62 and that he was positively identi ed by the witnesses as the
one who red shots against the victims, the use of an unlicensed rearm in the
commission of the crimes of Murder and Frustrated Murder should be considered as
an aggravating circumstance thereof.
The presence of such aggravating circumstance would have merited the
imposition of the death penalty for the crime of Murder. However, in view of R.A. No.
9346, we are mandated to impose on appellant the penalty of reclusion perpetua
without eligibility for parole.
Damages and civil liability
This Court resolves to modify the damages awarded by the appellate court in line
with the recent jurisprudence. 63 Appellant shall pay the Heirs of Sixto Elizan y Herrera
P100,000.00 as civil indemnity, P100,000.00 as moral damages, and P100,000.00 as
exemplary damages for the crime of Murder with the use of Unlicensed Firearm.
Appellant shall also be liable to pay P75,000.00 as civil indemnity, P75,000.00 as
moral damages, and P75,000.00 as exemplary damages for the crime of Frustrated
Murder. In addition, interest at the rate of six percent (6%) per annum shall be imposed
on all monetary awards from date of finality of this Judgment until fully paid.
WHEREFORE , the 29 July 2013 Decision of the Court of Appeals in CA-G.R. CR-
H.C. No. 01183 is AFFIRMED with MODIFICATIONS . Appellant LUISITO GABORNE Y
CINCO is found GUILTY beyond reasonable doubt of the crime of Murder with the use
of Unlicensed Firearm and shall suffer a penalty of Reclusion Perpetua, without
eligibility for parole and shall pay the Heirs of Sixto Elizan y Herrera P100,000.00 as civil
indemnity, P100,000.00 as moral damages, and P100,000.00 as exemplary damages;
and of the crime of Frustrated Murder and is hereby sentenced to suffer the
indeterminate penalty ranging from eleven (11) years of Prision Mayor as minimum, to
eighteen (18) years of Reclusion Temporal as maximum and shall pay P75,000.00 as
civil indemnity, P75,000.00 as moral damages, and P75,000.00 as exemplary damages.
All monetary awards for damages shall earn interest at the legal rate of six
percent (6%) per annum from the date of finality of this judgment until fully paid.
In the service of his sentence, appellant, who is a detention prisoner, shall be
credited with the entire period of his preventive imprisonment.
SO ORDERED. EcTCAD

Velasco, Jr., Peralta, Reyes and Perlas-Bernabe, * JJ., concur.
Footnotes
* Additional Member per Raffle dated 13 July 2016.
1. Rollo, pp. 3-21; Penned by Associate Justice Maria Elisa Sempio Diy with Associate
Justices Edgardo L. Delos Santos and Pamela Ann Abella Maxino concurring.
2. Records (Crim. Case No. CC-2007-1640), pp. 186-205; Presided by Acting Presiding Judge
Yolanda U. Dagandan.
3. Records (Crim. Case No. CC-2007-1640), p. 1.
4. Records (Crim. Case No. CC-2007-1650), pp. 1-2.

5. Records (Crim. Case No. CC-2007-1640), p. 43; Records (Crim. Case No. CC-2007-1650), p.
22.
6. CA rollo, pp. 70-87.
7. Also referred to in the records as Sixto Elisan.
8. Also referred to in the records as "Mana Riting" & "Narita Gayuso."
9. TSN, 21 August 2008, pp. 5-8.
10. TSN, 19 June 2008, pp. 9-11.

11. TSN, 25 September 2008, pp. 4-5.
12. TSN, 21 August 2008, pp. 8-9.
13. Id. at 10.
14. TSN, 19 June 2008, pp. 34-38.

15. Id. at 16-21.
16. Id. at 22.
17. TSN, 29 January 2009, pp. 7-17 and 29-43.
18. TSN, 13 August 2009, pp. 9-11.
19. Id. at 12.

20. TSNs, 8 October 2009, p. 9 and 4 June 2009, pp. 13-14.
21. Id. at 13; TSN, 8 October 2009, p. 9.
22. Id. at 14-17.
23. TSN, 13 August 2009, pp. 23 and 26.
24. Records (Crim. Case No. CC-2007-1640), pp. 204-205.

25. Rollo, p. 15.
26. Id. at 19-20.
27. Id. at 28-29.
28. Id. at 30 and 40-42.
29. CA rollo, p. 29.
30. Miclat, Jr. v. People, 672 Phil. 191, 203 (2013).
31. People v. Velasco, 722 Phil. 243, 252 (2013).
32. Rollo, p. 15.

33. People v. Ereño, 383 Phil. 30, 41 (2000).
34. People v. Rivera, 613 Phil. 660, 667 (2009).
35. Records (Crim. Case No. CC-2007-1640), p. 43.
36. Id. at 155.
37. People v. Dela Cruz, 626 Phil. 631, 639 (2010).

38. Cirera v. People , G.R. No. 181843, 14 July 2014, 730 SCRA 27, 47 citing Revised Penal
Code, Art. 14 (16).
39. People v. Pirame, 384 Phil. 286, 301 (2000) citing People v. Gatchalian, 360 Phil. 178, 196-
197 (1998).
40. Serrano v. People, 637 Phil. 319, 335 (2010).
41. TSN, 29 January 2009, p. 38.
42. People v. Ballesteros, 349 Phil. 366, 374 (1998).
43. Cupps v. State, 97 Northwestern Reports, 210.
44. 717 Phil. 670, 680-681 (2013).

45. Records, pp. 36-37 and 96.
46. TSN, 19 June 2008, pp. 14-16.
47. TSN, 21 August 2008, pp. 11-14.
48. People v. Abat , G.R. No. 202704, 2 April 2014, 720 SCRA 557, 564 citing People v.
Banzuela, 723 Phil. 797, 814 (2013).
49. People v. Barde , 645 Phil. 434, 457 (2010); People v. Berdin , 462 Phil. 290, 304 (2003);
People v. Francisco, 397 Phil. 973, 985 (2000).
50. People v. Cajumocan, 474 Phil. 349, 358 (2004).
51. TSN, 19 June 2008, p. 16.

52. TSN, 21 August 2008, p. 12.
53. TSN, 13 August 2009, pp. 19-22.
54. People v. Pagal, 338 Phil. 946, 951 (1997).
55. G.R. Nos. 105289-90, 21 July 1994, 234 SCRA 325, 332.
56. G.R. Nos. 108780-81, 29 April 1994, 232 SCRA 82, 96.

57. Records, p. 41.
58. Celino v. CA , G.R. No. 170562, 553 Phil. 178, 185 (2007) citing People v. Ladjaalam , 395
Phil. 1 (2010).
59. People v. Avecilla, 404 Phil. 476, 483 (2001).

60. People v. Molina, 354 Phil. 746, 786 (1998).
61. Id. at 786-787.
62. Records, p. 41.
63. People v. Jugueta , G.R. No. 202124, 5 April 2016 citing People v. Gambao , 718 Phil. 507,
531 (2013).

EN BANC
[G.R. No. 215305. April 3, 2018.]
MARCELO G. SALUDAY , petitioner, vs. PEOPLE OF THE PHILIPPINES ,

respondent.
DECISION
CARPIO , ** Acting C.J : p
The Case
Before the Court is a Petition for Review on Certiorari assailing the Decision
dated 26 June 2014 1 and the Resolution dated 15 October 2014 2 of the Court of
Appeals in CA-G.R. CR No. 01099. The Court of Appeals a rmed with modi cation the
Sentence dated 15 September 2011 3 rendered by the Regional Trial Court, Branch 11,
Davao City in Criminal Case No. 65,734-09, nding petitioner Marcelo G. Saluday
(petitioner) guilty beyond reasonable doubt of illegal possession of high-powered
rearm, ammunition, and explosive under Presidential Decree No. 1866, 4 as amended
(PD 1866). HTcADC
The Antecedent Facts
On 5 May 2009, Bus No. 66 of Davao Metro Shuttle was agged down by Task
Force Davao of the Philippine Army at a checkpoint near the Tefasco Wharf in Ilang,
Davao City. SCAA Junbert M. Buco (Buco), a member of the Task Force, requested all
male passengers to disembark from the vehicle while allowing the female passengers
to remain inside. He then boarded the bus to check the presence and intercept the entry
of any contraband, illegal firearms or explosives, and suspicious individuals.
SCAA Buco checked all the baggage and personal effects of the passengers, but
a small, gray-black pack bag on the seat at the rear of the bus caught his attention. He
lifted the bag and found it too heavy for its small size. SCAA Buco then looked at the
male passengers lined outside and noticed that a man in a white shirt (later identi ed
as petitioner) kept peeping through the window towards the direction of the bag.
Afterwards, SCAA Buco asked who the owner of the bag was, to which the bus
conductor answered that petitioner and his brother were the ones seated at the back.
SCAA Buco then requested petitioner to board the bus and open the bag. Petitioner
obliged and the bag revealed the following contents: (1) an improvised .30 caliber
carbine bearing serial number 64702; (2) one magazine with three live ammunitions; (3)
one cacao-type hand grenade; and (4) a ten-inch hunting knife. SCAA Buco then asked
petitioner to produce proof of his authority to carry rearms and explosives. Unable to
show any, petitioner was immediately arrested and informed of his rights by SCAA
Buco.
Petitioner was then brought for inquest before the O ce of the City Prosecutor
for Davao City. In its Resolution dated 7 May 2009, 5 the latter found probable cause to
charge him with illegal possession of high-powered rearm, ammunition, and explosive
under PD 1866. The Information dated 8 May 2009 thus reads:
That on or about May 5, 2009, in the City of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-mentioned accused,
willfully, unlawfully and knowingly, with intent to possess, had in his possession
and under his custody an improvised high powered rearm caliber .30 carbine
bearing Serial No. 64702 (made in Spain) with one (1) magazine loaded with
three (3) live ammunitions and one (1) "cacao" type hand grenade explosive,
without first securing the necessary license to possess the same.
CONTRARY TO LAW. 6
When arraigned, petitioner pleaded not guilty.
During the trial, the prosecution presented two witnesses namely, NUP Daniel
Tabura (Tabura), a representative of the Firearms and Explosives Division of the
Philippine National Police, and SCAA Buco. NUP Tabura identi ed the Certi cation
dated 5 November 2009 7 attesting that petitioner was "not a licensed/registered
holder of any kind and caliber per veri cation from records." Meanwhile, SCAA Buco
identi ed petitioner and the items seized from the bag, and testi ed on the details of
the routine inspection leading to the immediate arrest of petitioner. On cross-
examination, SCAA Buco further elaborated on the search conducted:
Atty. Mamburam
Q And that check point, which was conducted along Ilang [R]oad, Davao City,
was by virtue of a memorandum?
A Yes, Your Honor.
xxx xxx xxx
Q Now, you said that at around 5:00 of said date, you were able to intercept a
Metro Shuttle passenger bus and you requested all passengers to alight?
A Yes.
Q All female passengers were left inside?
A Yes, Your Honor.
Q And, after all passengers were able to alight, you checked all cargoes of the
passengers in the bus?
A Yes.
xxx xxx xxx
Q And, you testi ed that one of those things inside the bus was a black gray
colored pack bag which was placed at the back portion of the bus? aScITE
A Yes.
Q You said that the bag was heavy?
A Yes.
Q And you picked up or carried also the other belongings or cargo[e]s inside
the bus and that was the only thing or item inside the bus which was
heavy. Is that correct?
A There were many bags and they were heavy. When I asked who is the
owner of the bag because it was heavy but the bag was small , when I
asked, he said the content of the bag was a cellphone. But I noticed that it
was heavy.
xxx xxx xxx
Q And you said that somebody admitted ownership of the bag. Is that
correct?
A Yes.
Q Who admitted ownership of the bag?
A (WITNESS POINTS TO THE ACCUSED)
Q Now, you said that while you are looking at the bag, you noticed that one
male passenger you pointed as the accused kept looking at you ?
A Yes .
Q And, aside from the accused, all the other male passengers were not
looking at you?
A The other passengers were on the ground but he was in front of [the]
window looking towards his bag.
xxx xxx xxx
Q And the accused admitted that he owned the bag, you requested
him to open the bag?
A Not yet. I let him board the bus and asked him if he can open it.
Q And, when he opened it?
A I saw the handle of the firearm. 8 (Emphasis supplied)
On the other hand, the defense presented petitioner as sole witness. On direct
examination, petitioner denied ownership of the bag. However, he also admitted to
answering SCAA Buco when asked about its contents and allowing SCAA Buco to open
it after the latter sought for his permission:
ATTY. MAMBURAM
Q x x x [A]fter the conductor of the bus told the member of the task force that
you and your brother were seated at the back of the bus, can you please
tell us what happened next?
A The member of the task force asked who is the owner of the bag and what
were the contents of the bag.
Q To whom did the member of the task force address that question?
A To me because I was pointed to by the conductor.
Q And what was your reply to the question of the member of the task force?
A I told him it was only a cellphone.
Q By the way, Mr. Witness, who owned that bag?
A My elder brother.
Q And why did you make a reply to the question of the member of the task
force when, in fact, you were not the owner of the bag?
A Because I was pointed to by the conductor that it was me and my brother
who were seated at the back.
xxx xxx xxx
Q Now, after you told the member of the task force that probably the
content of the bag was cellphone, what happened next?
A He asked if he can open it.
Q And what was your reply?
A I told him yes, just open it.
xxx xxx xxx
Q Now, you said that the owner of the bag and the one who carried that bag
was your brother, what is the name of your brother? HEITAD
A Roger Saluday.
Q Where is your brother Roger now?
A Roger is already dead. He died in September 2009. 9 (Emphasis supplied)
On cross-examination, petitioner clari ed that only he was pointed at by the
conductor when the latter was asked who owned the bag. Petitioner also admitted that
he never disclosed he was with his brother when he boarded the bus:
PROS. VELASCO
Q You said that you panicked because they pulled you but as a way of saving
yourself considering you don't own the bag, did you not volunteer to inform
them that [the] bag was owned by your brother?
A I told them I have a companion but I did not tell them that it was my brother
because I was also afraid of my brother.
Q So, in short, Mr. Witness, you did not actually inform them that you
had a brother at that time when you were boarding that bus,
correct?
A No, sir, I did not.
xxx xxx xxx
Q So, you were answering all questions by saying it is not your bag but you
con rm now that it was the conductor of that bus who pointed you as the
owner of the hag, correct?
A Yes, sir, the conductor pointed at me as the one who [sic] seated at the
back. 1 0 (Emphasis supplied)
The defense subsequently rested its case and the prosecution waived the right
to present rebuttal evidence. Upon order from the trial court, the parties submitted their
respective memoranda.
The Decision of the Trial Court
Finding the denials of petitioner as self-serving and weak, the trial court declared
him to be in actual or constructive possession of rearm and explosive without
authority or license. Consequently, in the dispositive portion of the Sentence dated 15
September 2011, petitioner was adjudged guilty beyond reasonable doubt of illegal
possession of firearm, ammunition, and explosive under PD 1866:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered
nding Marcelo Gigbalen Saluday GUILTY of illegal possession of high
powered rearm, ammunition and explosive. For the offense of illegal
possession of high powered rearm and ammunition, he is hereby sentenced to
suffer an imprisonment of prision mayor in its minimum period. He is likewise
ordered to pay a ne of P30,000.00. For the offense of illegal possession of
explosive, he is hereby sentenced to suffer an imprisonment of prision mayor in
its maximum period to reclusion temporal. He is likewise ordered to pay a ne
of P50,000.00.
xxx xxx xxx
SO ORDERED. 1 1
On 12 October 2011, petitioner timely filed his Notice of Appeal. 1 2
The Decision of the Court of Appeals
On appeal, petitioner challenged his conviction raising as grounds the alleged

misappreciation of evidence by the trial court and the supposed illegality of the search.
1 3 On the other hand, the O ce of the Solicitor General (OSG) argued that the
warrantless search was valid being a consented search, and that the factual ndings of
the trial court can no longer be disturbed. 1 4
In its Decision dated 26 June 2014, the Court of Appeals sustained the
conviction of petitioner and affirmed the ruling of the trial court with modification:
WHEREFORE, the instant appeal is DISMISSED. The Sentence dated
September 15, 2011 of the Regional Trial Court, 11th Judicial Region, Branch 11,
Davao City, in Criminal Case No. 65,734-09, nding Marcelo Gigbalen Saluday
guilty beyond reasonable doubt of illegal possession of high powered rearm,
ammunition and explosive is AFFIRMED with the MODIFICATION that:
(1) for the offense of illegal possession of high-powered rearm and
ammunition, he is imposed an indeterminate sentence of four (4) years, eight
(8) months and twenty-one (21) days of prision correccional maximum, as the
minimum term, to seven (7) years and one (1) day of prision mayor minimum,
as the maximum term, in addition to the ne of Thirty thousand pesos
(P30,000.00); and
(2) for the offense of illegal possession of explosive, he is sentenced
to suffer the penalty of reclusion perpetua without eligibility for parole.
SO ORDERED. 1 5
Petitioner then led a Motion for Reconsideration, 1 6 to which the OSG led its
Comment. 1 7 In its Resolution dated 15 October 2014, 1 8 the Court of Appeals denied
petitioner's Motion for Reconsideration for being pro forma. Hence, petitioner led this
Petition for Review on Certiorari under Rule 45 of the Rules of Court.
The Issue
Petitioner assails the appreciation of evidence by the trial court and the Court of
Appeals as to warrant his conviction for the offenses charged. ATICcS
The Ruling of this Court
We affirm.
Only questions of law may be raised in a petition for review on certiorari under
Rule 45 of the Rules of Court. 1 9 As a result, the Court, on appeal, is not duty-bound to
weigh and sift through the evidence presented during trial. 2 0 Further, factual findings of
the trial court, when a rmed by the Court of Appeals, are accorded great respect, even
finality. 2 1
Here, petitioner assails his conviction for illegal possession of high-powered
rearm and ammunition under PD 1866, and illegal possession of explosive under the
same law. The elements of both offenses are as follows: (1) existence of the rearm,
ammunition or explosive; (2) ownership or possession of the rearm, ammunition or
explosive; and (3) lack of license to own or possess. 2 2 As regards the second and third
elements, the Court of Appeals concurred with the trial court that petitioner was in
actual or constructive possession of a high-powered rearm, ammunition, and
explosive without the requisite authority. The Decision dated 26 June 2014 reads in
pertinent part:
In the present case, the prosecution proved the negative fact that
appellant has no license or permit to own or possess the rearm, ammunition
and explosive by presenting NUP Daniel Tab[u]ra (Tab[u]ra), a representative of
the Firearms and Explosives Division (FED) of the PNP. He identi ed the
Certi cation issued by the Chief, Records Section, FED of the PNP, stating that
appellant "is not a licensed/registered holder of any kind and caliber per
verification from records of this office."
Appellant, however, questions the competence of Tab[u]ra to testify on
the veracity or truthfulness of the Certi cation. He claims that the o cer who
issued it should have been the one presented so he would not be denied the
right to confront and cross-examine the witnesses against him.
There is no merit to petitioner's claim. The following is pertinent:
xxx xxx xxx
The Court on several occasions ruled that either the
testimony of a representative of, or a certi cation from, the
Philippine National Police (PNP) Firearms and Explosive O ce
attesting that a person is not a licensee of any rearm would
su ce to prove beyond reasonable doubt the second element of
possession of illegal rearms. The prosecution more than
complied when it presented both.
xxx xxx xxx
Also, appellant denies having physical or constructive possession of the
rearms, ammunition and explosive. However, his denial ies in the face of the
following testimonies which he himself made:
xxx xxx xxx
Appellant gave information, albeit misleading, on the contents of the bag.
He even allowed the police o cer to open it. Based on his actuations, there
could be no doubt that he owned the bag containing the rearm, ammunition
and explosive.
Shifting the blame to his dead brother is very easy for appellant to
fabricate. Besides, the allegation that his brother owned the bag is
uncorroborated and self-serving. 2 3
As above-quoted, the presence of the second and third elements of illegal
possession of rearm, ammunition, and explosive raises questions of fact. Considering
further that the Court of Appeals merely echoed the factual ndings of the trial court,
the Court finds no reason to disturb them.
As regards the rst element, petitioner corroborates the testimony of SCAA
Buco on four important points: one, that petitioner was a passenger of the bus agged
down on 5 May 2009 at a military checkpoint in Ilang, Davao City; two, that SCAA Buco
boarded and searched the bus; three, that the bus conductor pointed at petitioner as
the owner of a small, gray-black pack bag on the back seat of the bus; and four, that the
same bag contained a .30-caliber rearm with one magazine loaded with three live
ammunitions, and a hand grenade. Notably, petitioner does not challenge the chain of
custody over the seized items. Rather, he merely raises a pure question of law and
argues that they are inadmissible on the ground that the search conducted by Task
Force Davao was illegal.
The Court disagrees.
Section 2, Article III of the Constitution, which was patterned after the Fourth
Amendment to the United States (U.S.) Constitution, 2 4 reads:
SEC. 2. T h e right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall he inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or a rmation
of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
(Emphasis supplied)
Indeed, the constitutional guarantee is not a blanket prohibition. Rather, it
operates against "unreasonable" searches and seizures only. 2 5 Conversely, when a
search is "reasonable," Section 2, Article III of the Constitution does not
apply. As to what quali es as a reasonable search, the pronouncements of the U.S.
Supreme Court, which are doctrinal in this jurisdiction, 2 6 may shed light on the matter.
In the seminal case of Katz v. United States , 2 7 the U.S. Supreme Court held that
the electronic surveillance of a phone conversation without a warrant violated the
Fourth Amendment. According to the U.S. Supreme Court, what the Fourth Amendment
protects are people, not places such that what a person knowingly exposes to the
public, even in his or her own home or o ce, is not a subject of Fourth Amendment
protection in much the same way that what he or she seeks to preserve as private, even
in an area accessible to the public, may be constitutionally protected, thus: TIADCc
Because of the misleading way the issues have been formulated, the
parties have attached great signi cance to the characterization of the telephone
booth from which the petitioner placed his calls. The petitioner has strenuously
argued that the booth was a "constitutionally protected area." The Government
has maintained with equal vigor that it was not. But this effort to decide whether
or not a given "area," viewed in the abstract, is "constitutionally protected"
de ects attention from the problem presented by this case. For the Fourth
Amendment protects people, not places. What a person knowingly exposes
to the public, even in his own home or o ce, is not a subject of
Fourth Amendment protection. See Lewis v. United States , 385 U.S. 206,
210; United States v. Lee , 274 U.S. 559, 563. But what he seeks to preserve as
private, even in an area accessible to the public, may be constitutionally
protected. See Rios v. United States , 364 U.S. 253; Ex parte Jackson, 96 U.S.
727, 733. 2 8 (Emphasis supplied)
Further, Justice John Harlan laid down in his concurring opinion the two-part test
that would trigger the application of the Fourth Amendment. First, a person exhibited an
actual (subjective) expectation of privacy. 2 9 Second, the expectation is one that
society is prepared to recognize as reasonable (objective). 3 0
The prohibition of unreasonable search and seizure ultimately stems from a
person's right to privacy. Hence, only when the State intrudes into a person's
expectation of privacy, which society regards as reasonable, is the Fourth Amendment
triggered. Conversely, where a person does not have an expectation of privacy or one's
expectation of privacy is not reasonable to society, the alleged State intrusion is not a
"search" within the protection of the Fourth Amendment.
A survey of Philippine case law would reveal the same jurisprudential reasoning.
To illustrate, in People v. Johnson, 3 1 the Court declared airport searches as outside the
protection of the search and seizure clause due to the lack of an expectation of privacy
that society will regard as reasonable:
Persons may lose the protection of the search and seizure clause by
exposure of their persons or property to the public in a manner re ecting a lack
of subjective expectation of privacy, which expectation society is prepared to
recognize as reasonable. Such recognition is implicit in airport security
procedures. With increased concern over airplane hijacking and terrorism has
come increased security at the nation's airports. Passengers attempting to
board an aircraft routinely pass through metal detectors; their carry-on baggage
as well as checked luggage are routinely subjected to x-ray scans. Should these
procedures suggest the presence of suspicious objects, physical searches are
conducted to determine what the objects are. There is little question that such
searches are reasonable, given their minimal intrusiveness, the gravity of the
safety interests involved, and the reduced privacy expectations associated with
airline travel. Indeed, travelers are often noti ed through airport public address
systems, signs, and notices in their airline tickets that they are subject to search
and, if any prohibited materials or substances are found, such would be subject
to seizure. These announcements place passengers on notice that ordinary
constitutional protections against warrantless searches and seizures do not
apply to routine airport procedures. 3 2 (Citations omitted)
Similarly, in Dela Cruz v. People , 3 3 the Court described seaport searches as
reasonable searches on the ground that the safety of the traveling public overrides a
person's right to privacy:
Routine baggage inspections conducted by port authorities, although
done without search warrants, are not unreasonable searches per se.
Constitutional provisions protecting privacy should not be so literally
understood so as to deny reasonable safeguards to ensure the safety of the
traveling public.
xxx xxx xxx
Thus, with port security personnel's functions having the color of state-
related functions and deemed agents of government, Marti is inapplicable in the
present case. Nevertheless, searches pursuant to port security measures are not
unreasonable per se. The security measures of x-ray scanning and inspection in
domestic ports are akin to routine security procedures in airports.
xxx xxx xxx

Port authorities were acting within their duties and functions when [they]
used x-ray scanning machines for inspection of passengers' bags. When the
results of the x-ray scan revealed the existence of rearms in the bag, the port
authorities had probable cause to conduct a search of petitioner's bag. Notably,
petitioner did not contest the results of the x-ray scan. 3 4
In People v. Breis , 3 5 the Court also justi ed a bus search owing to the reduced
expectation of privacy of the riding public:
Unlike the o cer in Chan Fook, IO1 Mangili did not exceed his authority
in the performance of his duty. Prior to Breis' resistance, IO1 Mangili laid nary a
nger on Breis or Yumol. Neither did his presence in the bus constitute an
excess of authority. The bus is public transportation, and is open to the public.
The expectation of privacy in relation to the constitutional right against
unreasonable searches in a public bus is not the same as that in a person's
dwelling. In fact, at that point in time, only the bus was being searched, not
Yumol, Breis, or their belongings, and the search of moving vehicles has been
upheld. 3 6
Indeed, the reasonableness of a person's expectation of privacy must be
determined on a case-to-case basis since it depends on the factual circumstances
surrounding the case. 3 7 Other factors such as customs, physical surroundings and
practices of a particular activity may diminish this expectation. 3 8 In Fortune Express,
Inc. v. Court of Appeals , 3 9 a common carrier was held civilly liable for the death of a
passenger due to the hostile acts of armed men who boarded and subsequently seized
the bus. The Court held that "simple precautionary measures to protect the
safety of passengers, such as frisking passengers and inspecting their
baggages, preferably with non-intrusive gadgets such as metal detectors,
before allowing them on board could have been employed without violating
the passenger's constitutional rights ." 4 0 In Costabella Corp. v. Court of Appeals ,
4 1 a compulsory right of way was found improper for the failure of the owners of the
dominant estate to allege that the passageway they sought to be re-opened was at a
point least prejudicial to the owner of the servient estate. The Court thus explained, "
[c]onsidering that the petitioner operates a hotel and beach resort in its property, it
must undeniably maintain a strict standard of security within its premises. Otherwise,
the convenience, privacy, and safety of its clients and patrons would be compromised."
4 2 Similarly, shopping malls install metal detectors and body scanners, and require bag
inspection as a requisite for entry. Needless to say, any security lapse on the part of the
mall owner can compromise public safety. AIDSTE
Concededly, a bus, a hotel and beach resort, and a shopping mall are all private
property whose owners have every right to exclude anyone from entering. At the same
time, however, because these private premises are accessible to the public, the State,
much like the owner, can impose non-intrusive security measures and lter those going
in. The only difference in the imposition of security measures by an owner and the State
is, the former emanates from the attributes of ownership under Article 429 of the Civil
Code, while the latter stems from the exercise of police power for the promotion of
public safety. Necessarily, a person's expectation of privacy is diminished whenever he
or she enters private premises that are accessible to the public.
In view of the foregoing, the bus inspection conducted by Task Force Davao at a
military checkpoint constitutes a reasonable search. Bus No. 66 of Davao Metro Shuttle
was a vehicle of public transportation where passengers have a reduced expectation of
privacy. Further, SCAA Buco merely lifted petitioner's bag. This visual and minimally
intrusive inspection was even less than the standard x-ray and physical inspections
done at the airport and seaport terminals where passengers may further be required to
open their bags and luggages. Considering the reasonableness of the bus search,
Section 2, Article III of the Constitution nds no application, thereby precluding the
necessity for a warrant.
As regards the warrantless inspection of petitioner's bag, the OSG argues that
petitioner consented to the search, thereby making the seized items admissible in
evidence. 4 3 Petitioner contends otherwise and insists that his failure to object cannot
be construed as an implied waiver.
Petitioner is wrong.
Doubtless, the constitutional immunity against unreasonable searches and
seizures is a personal right, which may be waived. 4 4 However, to be valid, the consent
must be voluntary such that it is unequivocal, speci c, and intelligently given,
uncontaminated by any duress or coercion. 4 5 Relevant to this determination of
voluntariness are the following characteristics of the person giving consent and the
environment in which consent is given: (a) the age of the consenting party; (b) whether
he or she was in a public or secluded location; (c) whether he or she objected to the
search or passively looked on; 4 6 (d) his or her education and intelligence; (e) the
presence of coercive police procedures; (f) the belief that no incriminating evidence will
be found; 4 7 (g) the nature of the police questioning; (h) the environment in which the
questioning took place; and (i) the possibly vulnerable subjective state of the person
consenting. 4 8
I n Asuncion v. Court of Appeals , 4 9 the apprehending o cers sought the
permission of petitioner to search the car, to which the latter agreed. According to the
Court, petitioner himself freely gave his consent to the search. In People v. Montilla , 5 0
the Court found the accused to have spontaneously performed a rmative acts of
volition by opening the bag without being forced or intimidated to do so, which acts
amounted to a clear waiver of his right. In People v. Omaweng , 5 1 the police o cers
asked the accused if they could see the contents of his bag, to which the accused said
"you can see the contents but those are only clothings." The policemen then asked if
they could open and see it, and the accused answered "you can see it." The Court held
there was a valid consented search.
Similarly in this case, petitioner consented to the baggage inspection done by
SCAA Buco. When SCAA Buco asked if he could open petitioner's bag, petitioner
answered "yes, just open it" based on petitioner's own testimony. This is clear
consent by petitioner to the search of the contents of his bag. In its Decision dated 26
June 2014, the Court of Appeals aptly held:
A waiver was found in People v. Omaweng . There, the police o cers
asked the accused if they could see the contents of his bag and he answered
"you can see the contents but those are only clothings." When asked if they
could open and see it, he said "you can see it." In the present case, accused-
appellant told the member of the task force that "it was only a cellphone" when
asked who owns the bag and what are its contents. When asked by the member
of the task force if he could open it, accused-appellant told him "yes, just open
it." Hence, as in Omaweng, there was a waiver of accused-appellant's right
against warrantless search. 5 2
To emphasize, a reasonable search, on the one hand, and a warrantless search,
on the other, are mutually exclusive. While both State intrusions are valid even without a
warrant, the underlying reasons for the absence of a warrant are different. A reasonable
search arises from a reduced expectation of privacy, for which reason Section 2, Article
III of the Constitution nds no application. Examples include searches done at airports,
seaports, bus terminals, malls, and similar public places. In contrast, a warrantless
search is presumably an "unreasonable search," but for reasons of practicality, a search
warrant can be dispensed with. Examples include search incidental to a lawful arrest,
search of evidence in plain view, consented search, and extensive search of a private
moving vehicle.
Further, in the conduct of bus searches, the Court lays down the following
guidelines. Prior to entry , passengers and their bags and luggages can be subjected
to a routine inspection akin to airport and seaport security protocol. In this regard,
metal detectors and x-ray scanning machines can be installed at bus terminals.
Passengers can also be frisked. In lieu of electronic scanners, passengers can be
required instead to open their bags and luggages for inspection, which inspection must
be made in the passenger's presence. Should the passenger object, he or she can
validly be refused entry into the terminal.
While in transit , a bus can still be searched by government agents or the
security personnel of the bus owner in the following three instances. First, upon receipt
of information that a passenger carries contraband or illegal articles, the bus where the
passenger is aboard can be stopped en route to allow for an inspection of the person
and his or her effects. This is no different from an airplane that is forced to land upon
receipt of information about the contraband or illegal articles carried by a passenger
onboard. Second, whenever a bus picks passengers en route, the prospective
passenger can be frisked and his or her bag or luggage be subjected to the same
routine inspection by government agents or private security personnel as though the
person boarded the bus at the terminal. This is because unlike an airplane, a bus is able
to stop and pick passengers along the way, making it possible for these passengers to
evade the routine search at the bus terminal. Third, a bus can be agged down at
designated military or police checkpoints where State agents can board the vehicle for
a routine inspection of the passengers and their bags or luggages.
In both situations, the inspection of passengers and their effects prior to entry at
the bus terminal and the search of the bus while in transit must also satisfy the
following conditions to qualify as a valid reasonable search. First, as to the manner of
the search, it must be the least intrusive and must uphold the dignity of the person or
persons being searched, minimizing, if not altogether eradicating, any cause for public
embarrassment, humiliation or ridicule. Second, neither can the search result from any
discriminatory motive such as insidious pro ling, stereotyping and other similar
motives. In all instances, the fundamental rights of vulnerable identities, persons with
disabilities, children and other similar groups should be protected. Third, as to the
purpose of the search, it must be con ned to ensuring public safety. Fourth, as to the
evidence seized from the reasonable search, courts must be convinced that
precautionary measures were in place to ensure that no evidence was planted against
the accused. AaCTcI
The search of persons in a public place is valid because the safety of others may
be put at risk. Given the present circumstances, the Court takes judicial notice that
public transport buses and their terminals, just like passenger ships and seaports, are
in that category.
Aside from public transport buses, any moving vehicle that similarly accepts
passengers at the terminal and along its route is likewise covered by these guidelines.
Hence, whenever compliant with these guidelines, a routine inspection at the terminal or
of the vehicle itself while in transit constitutes a reasonable search. Otherwise, the
intrusion becomes unreasonable, thereby triggering the constitutional guarantee under
Section 2, Article III of the Constitution.
To emphasize, the guidelines do not apply to privately-owned cars. Neither are
they applicable to moving vehicles dedicated for private or personal use, as in the case
of taxis, which are hired by only one or a group of passengers such that the vehicle can
no longer be agged down by any other person until the passengers on board alight
from the vehicle.
WHEREFORE , the petition is DENIED . The Decision dated 26 June 2014 and the
Resolution dated 15 October 2014 of the Court of Appeals in CA-G.R. CR No. 01099 are
AFFIRMED .
SO ORDERED .
Velasco, Jr., Leonardo-de Castro, Peralta, Bersamin, Del Castillo, Leonen, Caguioa,
Martires, Tijam and Gesmundo, JJ., concur.
Sereno, * C.J., is on leave.
Perlas-Bernabe *** and Reyes, Jr., *** JJ., are on wellness leave.
Jardeleza, **** J., took no part.
Footnotes
* On leave.
** Acting Chief Justice.

*** On wellness leave.
**** No part.
*** On wellness leave.
1. Rollo, pp. 25-34. Penned by Associate Justice Edgardo T. Lloren, with Associate Justices
Edward B. Contreras and Rafael Antonio M. Santos concurring.
2. Id. at 41-42.
3. CA rollo, pp. 22-25. Penned by Judge Virginia Hofileña Europa.
4. Entitled "Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing in,

Acquisition or Disposition, of Firearms, Ammunition or Explosives or Instruments Used in
the Manufacture of Firearms, Ammunition or Explosives, and Imposing Stiffer Penalties
for Certain Violations Thereof and for Relevant Purposes," Effective 29 June 1983.
5. Records, pp. 2-3.

6. Id. at 1.
7. Exhibit "F," Folder of Exhibits, p. 2.
8. TSN, 11 November 2009, pp. 14-16.

9. TSN, 22 March 2010, pp. 5-6, 8.

10. TSN, 22 March 2010, p. 10.
11. CA rollo, pp. 24-25.
12. Id. at 8.
13. Id. at 15-19.
14. Id. at 46-60.
15. Rollo, pp. 33-34.

16. Id. at 35-39.
17. CA rollo, pp. 87-90.

18. Rollo, pp. 41-42.
19. Section 1, Rule 45, Rules of Court.
20. Jose v. People, 479 Phil. 969, 978 (2004).

21. De la Cruz v. Court of Appeals, 333 Phil. 126, 135 (1996). See also Castillo v. Court of
Appeals, 329 Phil. 150, 158-159 (1996); Navallo v. Sandiganbayan, 304 Phil. 343, 354
(1994); People v. Cabalhin, 301 Phil. 494, 504 (1994).
22. People v. Dela Cruz, 400 Phil. 872, 879-880 (2000), citing People v. Bergante, 350 Phil. 275,
291 (1998).
23. Rollo, pp. 28-31.
24. The Fourth Amendment of the U.S. Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures , shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized. (Emphasis
supplied)
25. People v. Aruta, 351 Phil. 868, 878 (1998).
26. People v. Marti, 271 Phil. 51, 57 (1991).
27. 389 U.S. 347 (1967).

28. Id. at 351.
29. Id. at 361.

30. Id.
31. 401 Phil. 734 (2000).
32. Id. at 743.

33. 776 Phil. 653 (2016).
34. Id. at 661, 681, 683-684.

35. 766 Phil. 785 (2015).
36. Id. at 812.

37. Sps. Hing v. Choachuy, Sr., 712 Phil. 337, 350 (2013).
38. Ople v. Torres, 354 Phil. 948, 981 (1998).

39. 364 Phil. 480 (1999).
40. Id. at 490.

41. 271 Phil. 350 (1991).
42. Id. at 359.
43. Rollo, pp. 108-110.

44. Caballes v. Court of Appeals, 424 Phil. 263, 286 (2002).
45. Id., citing 68 Am Jur 2d Searches and Seizures, § 135.

46. Id., citing United States v. Barahona, 990 F. 2d 412.
47. Id., citing United States v. Lopez, 911 F. 2d 1006.
48. Id., citing United States v. Nafzger, 965 F. 2d 213.

49. 362 Phil. 118, 127 (1999).
50. 349 Phil. 640, 661 (1998).

51. 288 Phil. 350, 358-359 (1992).
52. Rollo, p. 32.

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EN BANC

[A.M. No. MTJ-16-1886. July 25, 2017.]

ANONYMOUS COMPLAINT , complainant, vs. PRESIDING JUDGE EXEQUIL L. DAGALA,

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CD Technologies Asia, Inc. © 2020 cdasiaonline.com

Judge Dagala filed his Comment 2 1 on August 21, 2016.

More importantly, the offenses of concubinage or adultery cannot be committed because, in my

1. Rollo, pp. 84-85.

8. Also referred to as "Comendador" in some parts of the record.

9. Also referred to as "Boerchs" in some parts of the record.

10. Rollo, pp. 69-71.

11. Id. at 66.

12. Id. at 24-27.

13. Id. at 25.

16. Id. at 27.

17. Id. at 63.

19. Id. at 5, 28.

20. Id. at 6-7.

22. Comprehensive Firearms and Ammunition Regulation Act.

23. Rollo, pp. 8, 13.

24. CONSTITUTION, Art. VIII, Sec. 6.

25. RULES OF COURT, Rule 140, Sec. 1.

30. Rollo, pp. 65-66.

31. Id. at 123.

32. Id. at 124-129.

33. Id. at 66.

34. Id. at 84.

35. Concurring and Dissenting Opinion, J. Leonen, p. 3.

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37. Rollo, p. 25.

38. Id. at 128.

39. Id. at 123.

40. Id. at 128.

41. Id. at 25. Emphasis supplied.

44. A.M. No. P-06-2282, August 7, 2009, 595 SCRA 455.

45. Id. at 462. Citations omitted.

46. RULES OF COURT, Rule 140, Sec. 8.

49. Id. at 83-84. Citations omitted; emphasis and underlining supplied.

51. Rollo, p. 129.

52. Republic Act No. 7877 (1995).

53. Republic Act No. 9262 (2004).

55. A.C. No. 1053, August 31, 1981, 107 SCRA 1.

56. Id. at 6-7.

57. Concurring and Dissenting Opinion, J. Leonen, p. 14.

62. Id. at 328-329.

63. RULES OF COURT, Rule 140, Sec. 1.

64. Concurring and Dissenting Opinion, J. Leonen, p. 15.

66. Id. at 411-412.

70. n Shelby County v. Holder, 570 US 2 (2013), J. Ginsburg, Dissenting Opinion.

71. Concurring and Dissenting Opinion, J. Leonen, p. 14.

74. See Planned Parenthood v. Casey , 505 U.S. 833 (1992).

77. Concurring and Dissenting Opinion, J. Leonen, p. 15.

79. Rollo, p. 25.

79. n A.M. No. 97-2-53-RTC, July 6, 2001, 360 SCRA 539.

80. Id. at 562.

82. Id. at 23-24.

83. A.M. No. RTJ-02-1708, July 23, 2002, 385 SCRA 6.

84. Id. at 22-23.

88. REVISED PENAL CODE, Art. 333.

89. REVISED PENAL CODE, Art. 334.

90. CONSTITUTION, Art. XV, Sec. 2.

91. Supra note 84 at 8.

93. A.M. No. MTJ-10-1755, October 18, 2016.