544 Phil. 614
AUSTRIA-MARTINEZ, J.:
The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES Y GACUTAN of the offense of ILLEGAL POSSESSION OF HIGH POWERED FIREARM & ITS AMMUNITIONS (Violation of P.D. No. 1866, as amended by R.A. No. 8294), committed as follows:In Criminal Case No. 4563-98 —
On May 8, 1998, at about 10:30 a.m., in Danlugan, Pagadian City, Philippines, within the jurisdiction of this Honorable Court, said RODOLFO ABENES Y GACUTAN did, then and there, willfully, unlawfully, and without any prior authority, license or permit to possess or carry the firearm hereunder described, have in his possession and control the following firearm classified as high powered, with its corresponding ammunitions and accessory, viz:- one (1) cal. 45 pistol (NORINCO) bearing SN 906347;in gross violation of P.D. No. 1866 as amended by R.A. No. 8294.
- one (1) magazine for pistol cal. 45
- seven (7) rounds live ammunitions for cal. 45,
CONTRARY TO LAW.[2]
The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES Y GACUTAN of Election Offense in violation of Sec. 261 (9)[3], BP 881 (OMNIBUS ELECTION CODE), vis-à-vis COMELEC RESOLUTION # 1958 (GUN BAN), committed as follows:Upon arraignment, the petitioner pleaded not guilty. Trial ensued.
On May 8, 1998, at about 10:30 a.m. within the Election period which is from January 11, 1998 to June 30, 1998, in Danlugan, Pagadian City, Philippines, within the jurisdiction of this Honorable Court, said RODOLFO ABENES Y GACUTAN did, then and there, willfully, and unlawfully, carry in his person a cal. .45 (NORINCO) pistol, bearing serial number 906347, and loaded with seven (7) rounds of live ammunitions, without any prior authority from the COMELEC in gross violation of Sec. 261 (9) of BP 881 (OMNIBUS ELECTION CODE) in relation to COMELEC RESOLUTION No. 2958 (GUN BAN).
CONTRARY TO LAW.[4]
The prosecution showed that three days prior to the May 11, 1998 national and local elections, the Philippine National Police (PNP) of Pagadian City, through its Company Commander Major Pedronisto Quano, created a team composed of seven policemen with a directive to establish and man a checkpoint in Barangay Danlugan at said city, for the purpose of enforcing the Gun Ban which was then being implemented by the COMELEC. SPO3 Cipriano Q. Pascua was the designated team leader.On June 5, 2000, the RTC rendered its Joint Decision convicting the petitioner on both charges, the dispositive portion of which states:
The team proceeded to Barangay Danlugan, arriving thereat at 8:15 in the morning of May 8, 1998. Team leader SPO3 Pascua coordinated with the Barangay Chairman of Danlugan, and the team put up a road block with the marking “COMELEC GUN BAN”. Vehicles passing through the road block were required by the team to stop and their occupants were then politely requested to alight in order to allow routine inspection and checking of their vehicles. Motorists who refused the request were not forced to do so.
At about 10:30 in the morning of the same day, a red Tamaraw FX trying to pass through the check point was stopped by the team and directed to park at the side of the road. As the occupants within the vehicle could not be seen through its tinted windows, SPO1 Eliezer Requejo, a member of the team, knocked on the vehicle’s window and requested the occupants to step down for a routine inspection. The eight occupants, which included the accused-appellant Rodolfo Abenes who is the Barangay Chairman of Tawagan Norte, Labangan, Zamboanga Del Sur, alighted from the vehicle. At this juncture, SPO1 Requejo and SPO3 Pascua noticed that a holstered firearm was tucked at the right waist of Abenes. The firearm was readily visible to the policemen; it was not covered by the shirt worn by Abenes. Abenes was then asked by SPO3 Pascua whether he had a license and authority to carry the firearm, and whether his possession was exempted from the Gun Ban being enforced by the COMELEC. Accused answered in the affirmative. The policemen then demanded for the pertinent documents to be shown to support Abenes’ claim. He could not show any. Hence, SPO1 Requejo confiscated Abenes’ firearm, which was later identified as a Norinco .45 caliber pistol bearing Serial No. 906347, including its magazine containing seven live ammunitions.
Subsequently SPO3 Pascua, using his privately owned jeep, brought Abenes to the PNP Headquarters at Camp Abelon in Pagadian City. Upon reaching the Headquarters, SPO3 Pascua indorsed Abenes to Major Quano who in turn referred Abenes to a certain SPO2 Benvienido Albon for further investigation (TSN, August 24, 1998 [SPO3 Cipriano Q. Pascua] pp. 5-27, [SPO1 Eliezer Requejo] pp. 29-50).
A certification dated May 18, 1998 from the Firearms and Explosives License Processing Section of the PNP, Pagadian City disclosed that Abenes is not a registered nor a licensed firearm holder (Record of Criminal Case No. 4559-98, p. 56).
After the prosecution presented its evidence, [the] accused filed a Demurrer to Evidence with Motion to Dismiss (supra, pp. 72-79), which was denied by the trial court in a Resolution dated March 5, 1999 (supra, pp. 80-82).
In his defense, accused-appellant tried to establish that the firearm did not belong to and was not recovered from him; that the firearm was recovered by the policemen from the floor of the vehicle inside a clutch bag which was allegedly left by an unidentified person who hitched a ride somewhere along the national highway of Tawagan Norte Zamboanga Del Sur and alighted near the Mabuhay Bazaar in Pagadian City (TSN, July 12, 1999 [Noel Rivera], pp. 7-13; September 15, 1999 [Rodolfo Abenes], pp. 11-15; September 27, 1999 [Manuel Sabado Gengania], pp. 9-16).[5]
WHEREFORE, in view of all the foregoing discussion, this Court hereby finds accused Rodolfo Abenes y Gacutan GUILTY beyond reasonable doubt for Violation of P.D. No. 1866, as amended by Republic Act No. 8294, having been found in possession without license/permit of a Norinco .45 caliber pistol bearing Serial No. 906347 and 7 rounds of ammunitions and sentences him to imprisonment ranging from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of PRISION CORRECCIONAL in its MEDIUM PERIOD, as MINIMUM, to EIGHT (8) YEARS of PRISION MAYOR in its MINIMUM, as MAXIMUM and a FINE of THIRTY THOUSAND PESOS (P30,000.00), Philippine currency. Insofar as Criminal Case No. 4559-98 is concerned. The .45 Caliber Pistol aforementioned and the seven (7) rounds of ammunitions are hereby forfeited in favor of the government the same being effects of the Violation of P.D. 1866, amended.The RTC found that, as between the positive and categorical assertions of facts by the two policemen – the witnesses for the prosecution – and the mere denial of the accused and his witnesses, the former must prevail over the latter; that the prosecution successfully proved that the petitioner had no license or permit to carry the firearm through the officer-in-charge of the firearms and explosives office who testified that, based on his records, the petitioner had not been issued a license, and whose testimony had not been impugned by the defense; and that the testimonies of the accused and his two witnesses to the effect that while aboard their private vehicle and on their way to attend an election campaign meeting, they simply stopped and allowed a complete stranger to hitch a ride who was carrying a clutch bag, left the same in the vehicle when he alighted, and which later turned out to contain the subject firearm, were flimsy and unbelievable. The RTC ruled that the defense of alibi or denial cannot prevail over the positive identification by eyewitnesses who have no improper motive to falsely testify against the petitioner, especially where the policemen and the petitioner do not know each other; and, that the petitioner failed to show any license or any other document to justify his lawful possession of the firearm.
As regards Criminal Case No. 4563-98, this Court also finds herein accused Rodolfo Abenes y Gacutan GUILTY of Violation of Section 264, in relation to Section 261, paragraphs (p) and (q) of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code and sentences him to imprisonment for a period of ONE (1) YEAR, and in addition thereto, herein accused is disqualified to hold any public office and deprived [of] the right of suffrage. It shall be understood that the sentence herein imposed shall be served simultaneously with the sentence imposed in Criminal Case No. 4559-98.
SO ORDERED.[6]
The appeal is partly meritorious. The Court reverses the CA’s finding of his conviction in Criminal Case No. 4559-98.I.
GIVEN THE CIRCUMSTANCES, AND THE EVIDENCE ADDUCED, WAS THE CHECK-POINT VALIDLY ESTABLISHED?II.
GIVEN THE CIRCUMSTANCES, AND THE EVIDENCE ADDUCED, WAS THE PETITIONER’S CONSTITUTIONAL RIGHT AGAINST UNLAWFUL SEARCH AND SEIZURE VIOLATED?III.
GIVEN THE CIRCUMSTANCES, AND THE EVIDENCE ADDUCED, DID NOT THE HONORABLE COURT OF APPEALS COMMIT A GRAVE ABUSE OF DISCRETION FOR ADOPTING THE TRIAL COURT’S UNSUBSTANTIATED FINDINGS OF FACT?IV.
GIVEN THE CIRCUMSTANCES, AND THE EVIDENCE ADDUCED, IS NOT THE PETITIONER ENTITLED TO AN ACQUITTAL, IF NOT ON THE GROUND THAT THE PROSECUTION FAILED TO PROVE GUILT BEYOND REASONABLE DOUBT, ON THE GROUND OF REASONABLE DOUBT ITSELF . . . AS TO WHERE THE GUN WAS TAKEN: FROM THE FLOOR OF THE VEHICLE OR FROM THE WAIST OF PETITIONER?[9]
Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and discriminatory manner.Thus, the Court agrees with the Solicitor General that petitioner’s reliance on Aniag is misplaced.
We take judicial notice of the existence of the COMELEC resolution imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the month. The incident, which happened on 5 April 1995, was well within the election period.
This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists’ right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle’s occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive.The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs.
The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the car’s doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands.[17] (Emphasis supplied)
xxx It must be emphasized that the policemen discovered the firearm [on] the person of the [petitioner] shortly after he alighted from the vehicle and before he was frisked. SPO3 Pascua’s testimony[,] corroborated by that of SPO1 Requejo[,] convincingly established that the holstered .45 caliber pistol tucked at the right waist of the [petitioner] was readily visible to the policemen (TSN, August 24, 1998, pp. 18, 37). Thus, notwithstanding the absence of a Search Warrant, the policemen may validly seize the firearm and the same is admissible in evidence against the [petitioner] pursuant to the “plain view doctrine” xxx.[20]Nor can the Court believe petitioner’s claim that he could not have freely refused the “police orders” issued by the police team who were “armed to the teeth” and “in the face of such show of force.” The courts a quo consistently found that the police team manning the checkpoint politely requested the passengers to alight from their vehicles, and the motorists who refused this request were not forced to do so. These findings of fact are fully supported by the evidence in the record.
Sec. 261. Prohibited Acts. – The following shall be guilty of an election offense:Section 32 of Republic Act No. 7166 (R.A. No. 7166), amending Section 261 of the Omnibus Election Code, provides:
(q) Carrying firearms outside residence or place of business. – Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof.x x x x (Emphasis supplied)
SEC. 32. Who May Bear Firearms. – During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during the election period. (Emphasis supplied)In view of the foregoing provisions, while it is well-settled that under P.D. No. 1866, as amended, the burden to prove the negative allegation that the accused has no license or permit to carry a firearm lies with the prosecution; under the Omnibus Election Code, however, the burden to adduce evidence that accused is exempt from the COMELEC Gun Ban, lies with the accused.
Sec. 264. Penalties. – Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served.The CA affirmed the penalty imposed by the RTC. However, the RTC failed to apply Section 1 of the Indeterminate Sentence Law[26] which provides:
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.Thus, the penalty that should be meted out to petitioner should have a minimum and a maximum period. The Court deems it reasonable that petitioner should suffer imprisonment for a period of one (1) year as the minimum and two (2) years, as the maximum.
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime.— Every penalty imposed for the commission of a felony shall carry with it the forefeiture of the proceeds of the crime and the instruments or tools with which it was committed.WHEREFORE, the petition is partly GRANTED. The Decision dated November 29, 2002 of the Court of Appeals is REVERSED and SET ASIDE insofar as Criminal Case No. 4559-98 is concerned. Petitioner Rodolfo Abenes Y Gacutan is ACQUITTED from the charge of illegal possession of firearm under P.D. No. 1866, as amended, for failure of the prosecution to prove his guilt beyond unreasonable doubt.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be the property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed.