CRIMINAL LAW 2

Fiscal Amado C. Vicente Professor

Prepared by: Junilo Dan D. Bairan 2011-107336 1-B

G.R. No. 162808 April 22, 2008 FELICIANO GALVANTE, petitioner, vs. HON. ORLANDO C. CASIMIRO, Deputy Ombudsman for the Military and Other Law Enforcement Offices, BIENVENIDO C. BLANCAFLOR, Director, DENNIS L. GARCIA, Graft Investigation and Prosecution Officer, SPO4 RAMIL AVENIDO, PO1 EDDIE DEGRAN, PO1 VALENTINO RUFANO, and PO1 FEDERICO BALOLOT, respondents. FACTS: Private respondents confiscated from petitioner one colt pistol super .38 automatic with serial no. 67973, one short magazine, and nine super .38 live ammunitions. The confiscated materials were covered by an expired Memorandum Receipt dated September 2, 1999. Consequently, the Assistant Provincial Prosecutor filed against petitioner an Information for Illegal Possession of Firearms and Ammunitions in Relation to Commission on Elections (Comelec) Resolution No. 3258 before the Regional Trial Court (RTC), Prosperidad, Agusan del Sur. Pending resolution of Criminal Case, petitioner filed against private respondents an administrative case for Grave Misconduct, before the Internal Affairs Service (IAS), Region XIII, and a criminal case, for Arbitrary Detention, Illegal Search and Grave Threats, before the Ombudsman. Petitioner alleged that upon arrival at the house of retired police Percival Plaza, together with Lorenzo Sanoria, Delfin Ramirez and Pedro Ramas, He immediately went down of the jeep but before he could call Mr. Plaza, four policemen in uniform blocked his way. That the four policemen were [private respondents] PO1 Romil Avenido PNP, PO1 Valentino Rufano, PNP both member of 142nd Company, Regional Mobile Group and PO1 Eddie Degran PNP and PO1 Federico Balolot PNP members of 1403 Prov'l Mobile Group, all of Bunawan Brook, Bunawan, Agusan del Sur; who all pointed their long firearms ready to fire. He raised his arms and heard [private respondent] PO1 Avenido saying, "ANG IMONG PUSIL, IHATAG" which means "Give me your firearm," to which I answered, "WALA MAN KO'Y PUSIL" translated as "I have no firearm," showing his waistline when he raised his T-shirt. His other companions on the jeep also went down and raised their arms and showed their waistline when the same policemen and a person in civilian attire holding an armalite also pointed their firearms to them to which Mr. Percival Plaza who came down from his house told them not to harass me as I am also a former police officer but they did not heed Mr. Plaza's statements. While we were raising our arms [private respondent] SPO4 Benjamin Conde, Jr. went near my owner type jeep and conducted a search. To which I asked them if they have any search warrant. That after a while they saw the super .38 pistol under the floor mat of the petitioners jeep and asked for the MR of the firearm but due to fear that their long arms were still pointed to them, He searched his wallet and gave the asked document. He further alleged that he was detained by Police Chief Rocacorba for two days having been released only after posing a bail. Consequently, petitioner filed an Affidavit of Desistance with both the IAS and Ombudsman absolving private respondents Avenido, Degran, Rufano and Balolot, but maintaining the private respondent Conde alone be prosecuted in both administrative and criminal cases. The IAS then issued a Decision finding all private respondents guilty of grave misconduct even if they were merely being enthusiastic in the conduct of the arrest in line of duty. The RTC dismissed the case against the petitioner. On the other hand, the Ombudsman dismissed the charges against private respondents for lack of probable cause. ISSUE: Whether or not the Ombudsman properly dismissed the criminal complaints filed against the private respondents. HELD: Yes. Public respondents' dismissal of the criminal complaint for illegal search which petitioner filed with the Ombudsman against private respondents was proper, although the reasons public respondents cited for dismissing the complaint are rather off the mark because they relied solely on the finding that the warrantless search conducted by private respondents was valid and that the Affidavit of Desistance which petitioner executed cast doubt on the veracity of his complaint. Public respondents completely overlooked the fact that the criminal complaint was not cognizable by the Ombudsman as illegal search is not a criminal offense. Nevertheless, the result achieved is the same: the dismissal of a groundless criminal complaint for illegal search which is not an offense under the RPC. Thus, the Court need not resolve the issue of whether or

not public respondents erred in their finding on the validity of the search for that issue is completely hypothetical under the circumstance. PEOPLE VS. GESMUNDO G.R. No. 89373 March 9, 1993 219SCRA743 FACTS: Accused-appellant Yolanda Gezmundo was convicted by the trial court for violation of Dangerous Drugs Act of 1972 for the alleged selling of marijuana. The prosecution's version of the story is that police officer Jose Luciano instructed his civilian informer to buy marijuana from the accused. He saw the accused selling marijuana to his civilian informer. On the same day, a raiding police team armed with Search Warrant went to the residence of the accused. The accused led the team into her kitchen and she pointed to a metal basin on top of a table as the hiding place of the dried marijuana flowering tops contained in a plastic bag. The police also recovered from an away cabinet dried marijuana flowering tops wrapped separately paper. After the discovery, the accused was photographed together with the confiscated items. Thereafter, accused was made to acknowledge in writing that the dried marijuana flowering tops were taken from her possession and control inside her residence. Accused-appellant's version, on the other hand is that Sgt. Yte was invited by accused-appellant to enter the house. While seated at the, sala, Sgt. Yte was showing to accused-appellant a search warrant when someone uttered the following words "ito na" coming from the direction where the kitchen of the house is. She, together with Sgt. Yte proceeded to the kitchen and saw PFC Luciano holding a plastic bag with four other companions who entered the house through the back door. Luciano handed the bag to Sgt. Yte who, after examining the contents, confronted the accused-appellant and insisted that the plastic bag came from her. She denied the accusation. Then she was made to sign a prepared document with her name already printed on it. Sgt. Yte asked help from accusedappellant to testify against one Warner Marquez, son of her former landlord, for drug pushing. Accused refused but Sgt. Yte was forcing her to testify against Marquez. Sgt. Yte left word that accused, should be careful as she might be the next to be charged with drug pushing ISSUE: Whether or not the evidence against accused are validly seized to secure her conviction. HELD: No. The Investigation Report states that the raiding team discovered a hole at the backyard of the house of the suspect with a can inside the hole and on top of the cover a flower pot was placed wherein the marijuana were confiscated. In the testimonies of Luciano and Sgt. Yte, there was no mention of any marijuana obtained from a flower pot as stated in the investigation report. This shows inconsistencies as to where the marijuana was found. Irreconcilable and unexplained contradictions in the testimonies of the prosecution witnesses cast doubt on the guilt of appellant and his culpability to the crime charged. The search of the accused-appellant's house was conducted in violation of Section 7, Rule 126 of the Rules of Court which provides that no search of a house, room or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality. It is true that the police were able to get an admission from the accused-appellant that marijuana was found in her possession but said admission embodied in a document entitled "PAGPAPATUNAY" previously prepared by the police, is inadmissible in evidence against the accused appellant for having been obtained in violation of her rights as a person under custodial investigation for the commission of an offense. The records show that the accused appellant was not informed of her right not to sign the document; neither was she informed of her right to the assistance of counsel and the fact that the document may be used as evidence against her. Also, the person making the search has the duty to issue a detailed receipt for the property seized and required to deliver the property seized to the judge who issued the warrant, together with a true and accurate inventory thereof duly verified under oath. The inventory was not clearly established in the trial court. If the exculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. Therefore, accusedappellant was acquitted.