G.R. No. 229548. February 28, 2018

[G.R. No. 229548, February 28, 2018]. KARLUS MARKUS YU Y ESPIRITU V. PEOPLE OF THE PHILIPPINES.

This Court has carefully reviewed the allegations, issues, and arguments adduced in the instant Petition for Review on Certiorari and accordingly resolves to DENY the same for lack of proper Verification and Certification of Non-Forum Shopping, as the same was signed by Atty. Adonis Arc P. Gumahad without proof of authority to sign the same for and on behalf of petitioner. In any event, petitioner failed to sufficiently show that the Court of Appeals (CA) committed any reversible error in rendering its Decision dated August 12, 2016 and Resolution dated January 5, 2017.

The defect in the verification and certification of non-forum shopping (verification and certification) violates Section 4, Rule 45, in relation to Section 2, Rule 42 and Section 5, Rule 7 of the Rules of Court (Rules). Under Section 5, Rule 45 of the Rules, failure of the petitioner to comply with the requirements for a proper verification and certification "shall be sufficient ground for the dismissal thereof."

Moreover, the issues raised are factual in nature since they require a review of the probative value of the evidence presented before the trial court. Section 1, Rule 45 of the Rules explicitly provides that the petition for review on certiorari shall raise only questions of law, which must be distinctly set forth. This Court is not a trier of facts. While there are recognized exceptions to the aforesaid rule, none exists in this case.

Even considering the allegations, arguments, and issues raised in the said petition, the same should still be denied for failure to sufficiently show that the CA committed any reversible error in affirming the trial court's Consolidated Judgment finding petitioner guilty beyond reasonable doubt of violation of Sections 5 and 11, Article II of Republic Act No. (RA) 9165, or the Comprehensive Dangerous Drugs Act of 2002.

The prosecution proved the presence of the following elements of illegal sale of shabu: (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor.[1] The CA ruled that the poseur-buyer positively identified petitioner as the one from whom she purchased two sachets of white crystalline substance, for a consideration of P2,000.00 during a legitimate buy-bust operation. These two sachets were marked as "A-1 (BB-1 EPC 05-1-11)" and "A-2 (BB-2 EPC 05-1-11)" and presented in court with a chemistry report concluding that the contents of said sachets yielded positive for shabu.

As for the crime of illegal possession of shabu, the prosecution was likewise able to prove the elements of the said crime, particularly that (1) the accused was in possession of an item or object, which was identified as a prohibited drug; (2) such possession was not authorized by law; and (3) the accused freely and consciously possessed the drug.[2]For having been frisked and found with another four sachets containing a total of 0.10 gram of shabu in his pocket without any legal authority to possess the same, petitioner clearly violated Section 11 of RA 9165. Of the 4 sachets, two (2) tested positive for shabu which were likewise presented in court during trial.

Petitioner insists that his guilt was not proven beyond reasonable doubt given (1) the absence of a media and Department of Justice (DOJ) representatives during the buy-bust operation; (2) the failure to conduct prior surveillance; (3) the failure to present the buy-bust money in evidence; (4) the witnesses' inconsistencies; and (4) the failure to comply with the requirements under Section 21 of RA 9165. However, these issues have already been sufficiently discussed by the CA in its August 12, 2016 Decision and January 5, 2017 Resolution. In any case, we shall briefly discuss these issues to settle the matter once and for all.

Contrary to petitioner's insistence that the buy-bust operation was akin to a raid given the failure of the buy-bust team to conduct prior surveillance, we held that "a prior surveillance or test buy is not required for a valid buy-bust operation, as long as the operatives were accompanied by their informant."[3] Here, there was no doubt that the confidential informant accompanied the buy-bust team and was the one who called petitioner, introduced the poseur-buyer (Intelligence Officer I Expedite Cardona) as his (informant's) friend, and told petitioner that the poseur-buyer would like to purchase shabu worth P2,000.00.[4]It is also not true that there was no representative from the media or elected public official who served as witness. As succinctly held by the CA:
IO1 Cardona conducted an inventory, made markings and took pictures of the items seized and confiscated in the room where the accused-appellant was arrested. It was witnessed by Kag. Piquero and the ABS-CBN media personnel.[5]
Anent the chain of custody, the CA concluded that the prosecution was able to follow the procedure under Section 21 of RA 9165, to wit:
xxx [F]irst, the seizure and marking of the shabu and paraphernalia recovered from the accused-appellant were practically done by 101 Cardona; second, 101 Cardona had the items in his possession and personally brought the confiscated items to the PDEA office; third, 101 Cardona delivered the confiscated items to the crime laboratory for its examination by PSI Sampagan; and fourth, after PSI Sampagan sealed, marked[,] and delivered the confiscated items to the evidence custodian for safekeeping, she retrieved the very same items and personally presented it in court on April 30, 2012.[6]
Given the foregoing, it can be said that there was certainty that the sachets of shabu confiscated during the buy-bust operation were the same items presented during trial. The identity and integrity of the confiscated shabu were established by the unbroken chain of custody.

Nevertheless, this Court deems it proper to modify the penalty imposed by the Regional Trial Court (RTC) in the crime of illegal possession of shabu. In the RTC's Consolidated Judgment dated March 16, 2015, the trial court imposed a penalty of twelve (12) years and one (1) day as minimum to twelve (12) years and two (2) days as maximum, and a fine of P300,000.00. In Balarbar v. People,[7] we imposed an indeterminate penalty of twelve (12) years and one (1) day, as minimum, to fourteen (14) years and eight (8) months, as maximum, and a fine of P300,000.00 for the illegal possession of 0.10 gram (more or less) of shabu[8] Thus, the same indeterminate penalty should be applied here.

ACCORDINGLY, the Court resolves to AFFIRM the Court of Appeal's Decision dated August 12, 2016 and Resolution dated January 5, 2017 in CA-G.R. CR HC No. 01423-MIN with MODIFICATION that in Crim. Case No. 2001-380, petitioner Karlus Markus Yu y Espiritu is sentenced to suffer an indeterminate sentence of twelve (12) years and one (1) day, as minimum, to fourteen (14) years and eight (8) months, as maximum and to pay a fine of P300,000.00.

The Entry of Appearance as Collaborating Counsel dated August 25, 2017 of Menzon Vecinal & Partners Law Office, as well as the The Motion to Withdraw as Counsel for the Petitioner- Appellant dated September 12, 2017 of Atty. Adonis Arc P. Gumahad are NOTED.

[1] People v. De Jesus, 703 Phil. 169, 182 (2013), citing People v. Del Rosario, 700 Phil. 435, 443 (2012).
[2] People v. Montevirgen, 723 Phil, 534, 542 (2013), citing People v. Sembrano, 642 Phil. 476, 490-491 (2010).
[3] People v. Manlangit, 654 Phil. 427, 437 (2011), citing Quinicot v. People, 608 Phil. 259, 274-275 (2009).
[4] 632 Phil. 295 (2010).
[5] People v. Darisan, 597 Phil. 479 (2009) and People v. Dilao 555 Phil 394 (2007).

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