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REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
THIRD JUDICIAL REGION
BRANCH 41, CITY OF SAN FERNANDO
PAMPANGA

PEOPLE OF THE PHILIPPINES,

Plaintiff,

- versus - Criminal Case Nos. 23409 & 23410

For: ___________

JUAN CARLOS D. HIPOLITO,

Accused.
x-----------------------------------------------x

DEMURRER TO EVIDENCE
The accused, by and through the undersigned counsel, with leave granted
by this Honorable Court, respectfully submits his demurrer to the prosecution’s
evidence, which failed to prove his guilt beyond reasonable doubt of the crimes
charged, and therefore did not overcome the presumption of innocence on the part
of the accused;

In order to safeguard its citizenry from the harmful effects of

dangerous drugs on their physical and mental well-being, the State
pursued an intensive and unrelenting campaign against the
trafficking and use of dangerous drugs and other similar
substances. However, in our desire to totally eradicate this social ill,
we must adhere to the constitutional pronouncement that in all
criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved. (G.R. No. 180870, January 22, 2010,
JULIUS CACAO y PRIETO, Petitioner, vs. PEOPLE OF THE
PHILIPPINES, Respondent.

The oft-cited presumption of regularity in the performance of official

functions cannot by itself affect the constitutional presumption of
innocence enjoyed by an accused, particularly when the
prosecution's evidence is weak. The evidence of the prosecution
must be strong enough to pierce the shield of this presumptive
innocence and to establish the guilt of the accused beyond
reasonable doubt. And where the evidence of the prosecution is
insufficient to overcome this presumption, necessarily, the judgment
of conviction of the court a quo must be set aside. The onus
probandi on the prosecution is not discharged by casting
doubts upon the innocence of an accused, but by eliminating
all reasonable doubts as to his guilt. (G.R. No. 92706, May 21,
1992, PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
JESUS MIRANTES, accused -appellant.)
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To secure a conviction for illegal sale of shabu, the following

essential elements must be established: (1) the identity of the buyer
and the seller, the object of the sale and the consideration; and (2)
the delivery of the thing sold and the payment thereof. In
prosecutions for illegal sale of shabu, 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.

For a discrepancy or inconsistency in the testimony of a

witness to serve as basis for acquittal, it must refer to the
significant facts vital to the guilt or innocence of the accused
for the crime charged. (G.R. No. 186418, October 16, 2009,
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.
ALFREDO LAZARO, JR. a.k.a JUN LAZARO y AQUINO, Accused-
Appellant.)

Emphasis and underscoring supplied; citations omitted

In this case, the prosecution failed to establish beyond reasonable doubt

that the accused did in fact commit the offense charged, namely the possession
and sale of prohibited drugs, due to the material inconsistencies in the testimonies
of its witnesses that cast doubt on whether or not the alleged transaction actually
took place. Hence, the presumption of innocence on the part of the accused must
prevail and warrant the dismissal of the cases against him.

Here are the inconsistencies that are fatal to the prosecution:

AS TO THE CONFIDENTIAL INFORMANT:

PO1 Mark Jim Simbulan testified that the confidential informant (CI) went to their
police station on 16 December 2016 (the date of the alleged buy-bust) at 3pm (15
cross), but P02 Jaime Toledo, Jr. testified that he sent a coordination report to the
PDEA at 7:35 a.m. on 16 December 2016 (8 cross):

ATTY AGUAS:

Q: We go to the buy-bust on December 16. You said that on December 16, a

confidential informant again reported. Is this the same person?

A: The same person, sir.

Q: To whom did he report again?

A: To our team leader at out station, sir.

Q: To whom did he tell the information on December 16?

A: PO2 Toledo, sir.

Q: Toledo again?
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A: Yes sir.

Q: What time did he go there?

A: Around 3:00 p.m. sir.

(TSN 11 July 2017, pages 14 to 15)

ATTY AGUAS:

Q: Mr. Witness, you identified these documents to prove your sending of

coordination report by e-mail correct?

A: Yes sir.

Q: I call your attention to one of these printed screen capture from a computer
screen. I call your attention to the date on the top right portion. Could you read
the date Mr. Witness?

A: 12-16 7:35 a.m.

Q: Please complete the date Mr. Witness.

A: 12-16-16 at 7:35 a.m.

(TSN 30 January 2018, page 8)

Simbulan testified on cross examination that on the date of the alleged test buy,
the confidential informant talked to the subject Simon (the accused Juan Carlos
Hipolito) outside the computer shop allegedly owned by said accused (page 12
cross). PO1 Jerome Alvin Tayag testified that the confidential informant talked to
the subject Simon inside the computer shop (page 8-9 cross):

Q: Upon arrival at the internet shop, Mr. Witness what happened? Could you tell
us how did the transaction go?

A: The confidential informant first talked with the suspect sir.

Q: Were they inside or outside?

A: Outside the shop sir.

(TSN 11 July 2017, page 12)

Q: Upon arriving at the computer shop, you said that you were also inside the
computer shop?

A: Yes sir.
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(TSN, 3 October 2017, page 8)

Q: You did not hear him called out or talked to the suspect?

A: Yes sir.

Q: So they went back inside?

A: Yes sir.

Q: And then according to you Police Officer Simbulan was able to buy, later was
identified as marijuana?

A: Yes sir.

(TSN, 3 October 2017, page 10-11)

Tayag testified that on 16 December 2016, the CI talked to Toledo about the buy-
bust (14-15 cross). Simbulan also testified that Toledo received information from
the CI on 16 December (14 cross). Toledo testified that he did not receive any
information directly from the CI on 16 December 2016 (4 cross):

Q: Did the CI talk to the team?

A: Only to the team leader sir.

Q: Who is Police Officer Toledo?

A: Yes sir and COP.

(TSN, 3 October 2017, page 14)

Q: We go on to the buy-bust on December 16. You said that on December 16, a

confidential informant again reported. Is this the same person?

A: The same person sir.

Q: To whom did he report again?

A: To our team leader at our station sir.

Q: To whom did he tell the information on December 16:

A: PO2 Toledo sir.

(TSN 11 July 2017, page 14)

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Q: Going back to December 16, you said that your Chief of Police received the
information from the informant.

A: On the 16th I could no longer remember. What I could only remember was the
incident on December 12.

Q: Because in your transcript, it says here on page 7 –

Q: Could you please tell us Mr. Witness the name of your COP who
received the said information?

A: Police Chief Inspector Sonia Alvarez ma’am.

So you are referring to your Chief of Police who received the information from
the informant?

A: I got mixed up sir. There were two (2) dates – December 12 and December 16.
What I could remember was that it was on December 12 when I personally
received the information from the informant but on December 16, my Chief of
Police told me. The information was not directly received by me on December 16
sir. The informant reported to the affiants and thereafter, the affiants reported to
the Chief of Police and then the Chief of Police told me to conduct a coordination.

Q: And who are these affiants Mr. Witness?

A: PO1 Simbulan and Tayag sir.

(TSN, 30 January 20118, pages 3-4)

Simbulan testified that Toledo received information from the CI on 12 December

2016, which was the basis for the test-buy (5 – 6 cross?). Toledo, however, did
not testify to this at all during his direct examination (cross, was not asked):

Q: How far were you from him when he arrived at the station?

A: He reported to our Team Leader PO2 Toledo and PO2 Toledo disseminates
the information, sir.

(TSN, 11 July 2017, page 5)

Q: Your testimony started with events on December 16, 2016. Before December
16, 2016, did you know the accused in this case?

A: Yes sir. Prior to December 16, I already know him because we already had a
test buy before the buy bust sir.

Q: But this test buy was not mentioned by you in your direct examination,
correct?

A: I was not asked sir.

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(TSN 30 January 2018, page 3)

AS TO THE ALLEGED BUY-BUST:

According to Simbulan, the buy-bust team went to the supposed site (behind the
Don Honorio Ventura State University) using two motorcycles and a car, with
Simbulan and the CI riding one motorcycle, Tayag (as back up) riding the second
motorcycle, and the rest of the team in the car (19-20 direct). Toledo testified he
rode a motorcycle to the buy-bust area (9 cross):

FISCAL MAAT:

Q: Could you please tell us how did you reach the place?

A: We used two (2) motorcycles and one (1) car ma’am.

Q: Could you please tell us who rode the first motorcycle?

A: Me, ma’am.

Q: How about the second motorcycle?

A: The backup was riding the second motorcycle ma’am.

Q: And the other members of the team, where did they ride Mr. Witness?

A: In the car, ma’am.

Q: How about the confidential informant, was the confidential informant with you
when you proceeded to the target area?

A: Yes ma’am.

Q: And where did he ride?

A: He was my back ride, ma’am.

(TSN 6 June 2017, pages 19-20)

ATTY. AGUAS:

Q: Mr. Witness, in your Affidavit of Arrest, you only made mention of yourself,
PO1 Tayag and the informant who went to the buy bust area?

A: PO1 Tayag is my back up while the other members acted as perimeter

security sir.

(TSN, 11 July 2017, page 15)

Q: How did you go there Mr. Witness?

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A: We went to the place on separate vehicles. I was riding a motorcycle while the
other members went to the area using a black Honda Civic sir.

(TSN, 30 January 2018, page 9)

Simbulan testified on cross that the CI talked to Simon at 430pm at the buy-bust
area (20 cross). Tayag testified that upon arrival at the buy-bust area at 430pm,
the suspect was not yet there (16 cross) :

Q: When you got there, the suspect was already there seated on a concrete
pavement?

A: Yes sir.

Q: By the time you got there, what time was this, Mr. Witness?

A: Around 4:30 p.m. sir.

(TSN 11 July 2017, page 20)

Q: What time did you arrive there?

A: Around 4:30 sir.

xxx

Q: When you got there, the suspect was not there?

A: Yes sir.

(TSN 3 October 2017, page 16)

Simbulan testified the CI went to their station at 3pm on 16 December 2016. Yet
he later claimed he went home to change to cargo shorts (for the buy-bust) at 1pm
(32 cross):

Q: Because you said the confidential informant went to your station on the day of
the buy bust around what time?

A: 3:00 p.m.

Q: So when did you go home to change?

A: Around 1:00 o’clock sir after lunch.

Q: Why did you go home after lunch to change?

A: Because we were going to conduct a buy-bust sir.

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(TSN 11 July 2017, page 32)

According to his affidavit of arrest (Exhibit U), upon purchase of marijuana from
the accused on 16 December 2016, Simbulan

1) scratched his head;

2) introduced himself as a police officer;
3) frisked the suspect; and
4) the back up team moved in.

However, on direct examination, Simbulan said 1) he introduced himself as a

police officer; 2) scratched his head; 3) the back up team moved in; 4) Tayag
arrested the suspect; and 5) Simbulan frisked the suspect:

FISCAL MAAT:

Q: And after you received the marijuana, what did you do next or what happened
next, if any?

A: After I was able to buy marijuana, I introduced myself as a police officer,

ma’am.

Q: And after you introduced yourself to the suspect as a police officer, what
transpired next?

A: We had a pre-arranged signal and that is by means of scratching my head,

ma’am.

Q: And after you scratched your head, what happened next, Mr. Witness?

A: Because my back up and the perimeter security were just ten (10) meters away
from me, my back up was able to see the pre-arranged signal, ma’am.

Q: And what did PO1 Tayag do upon seeing you executed or performed the pre-
arranged signal?

A: He arrested the person ma’am, and I was the one who frisked the suspect.

(TSN 6 June 2017, pages 22 – 23)

CHAIN OF CUSTODY:

The prosecution did not introduce into evidence a chain of custody form for the
alleged prohibited drugs seized from the accused, and Simbulan testified he was
away from the evidence, upon return to the police station for less than an hour (36
– 37 cross):

ATTY. AGUAS:
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Q: When you brought the suspect and the evidence to the station and before you
left for the Crime Lab, the evidence was at the station, Were you with the evidence
the whole time?

A: No sir.

Q: How long were you away from it? How many minutes?

A: Less than an hour sir.

(TSN 11 July 2017, pages 36 to 37)

FAILURE TO MARK EVIDENCE ON SITE:

The main reason given by Simbulan and Tayag were the presence of people
around them at the time that prevented on-site marking of the alleged prohibited
drugs seized from the accused at the time of the alleged buy-bust. However, their
testimonies prove this hard to believe:

Simbulan testified there were many people around them, around 50 (27-29 direct).
Tayag testified that there were 50 to 60 in the area but in the nearby canteen and
that only ten people were immediately around the suspect (18 cross), and they
talked in a low voice (20 cross). Toledo testified there were around 20 students in
the area (15 – 16 cross):

FISCAL MAAT:

Q: Where did those people come from, Mr. Witness?

A: Since it is located at the back of the school, there were many persons who
saw, ma’am.

COURT:

Q: How many were these people?

A: Around fifty (50) persons Your Honor, since it’s at the back of the school, there
were many canteens located thereat.

Q: What kind of people are these, are they students, are they teachers?

A: Students and teachers ma’am.

Q: So the fifty (50) would comprise most of students?

A: Yes ma’am.

(TSN 6 June 2017, pages 28 to 29)

ATTY. AGUAS:
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Q: At the time, how many people were in the area when they met the suspect?

A: Around 50 to 60 sir.

Q: What were these people doing?

A: They are eating in the canteen sir.

Q: You met the suspect, correct?

A: Yes sir.

Q: Immediately around the suspect, the CI and PO1 Simbulan and yourself how
many were around you?

A: Around ten (10) sir.

(TSN 3 October 2017, page 18)

Q: When you introduced yourself as officer and informed him that he was being
arrested, how loud were you talking to him?

A; Medyo mahina lang po sir.

Q: So normal conversational voice?

A: So that students will not get near us sir.

(TSN 3 October 2017, page 20)

Q: When you approached them, how many people were in the area at that time?

A: There were students at the back sir.

Q: How many?

A: I could not count sir, because I was not focused on the students.

COURT

Give an estimate. Will it be 10? 20? 50? 100?

A: More or less 20 Your Honor, because there is a canteen at the back.

(TSN 30 January 2018, pages 15 to 16)

All told, these material inconsistencies cast doubt on the conduct of the actual buy-
bust, if any was done at all.
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The importance of the chain of custody was highlighted by the Supreme Court in
People vs. Dahil and Castro1, to wit:

“Although R.A. No. 9165 does not define the meaning of chain of
custody, Section 1(b) of Dangerous DrugsBoard Regulation No. 1,
Series of 2002, which implements R.A. No. 9165, explains the said
term as follows:

"Chain of Custody" means the duly recorded authorized

movements and custody of seized drugs or controlled
chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation
to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of movements
and custody of seized item shall include the identity and signature of
the person who held temporary custody of the seized item, the date
and time when such transfer of custody were made in the course of
safekeeping and use in court as evidence, and the final disposition.

As a means of ensuring the establishment of the chain of custody,

Section 21 (1) of R.A. No. 9165 specifies that:

(1) The apprehending team having initial custody and control of the
drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of
the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof.

Specifically, Article II, Section 21(a) of the Implementing Rules and

Regulations (IRR)of R.A. No. 9165 enumerates the procedures to be
observed by the apprehending officers to confirm the chain of
custody, to wit:

xxx

(a) The apprehending officer/team having initial custody and control

of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ), and any
elected public official 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 office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further that
non-compliance with these requirements under justifiable grounds,
as long as the integrity and the evidentiary value of the seized items
are properly preserved by the apprehending officer/team, shall not

11
GR 212196, 12 January 2015
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render void and invalid such seizures of and custody over said
items;”

(Emphasis and underscoring supplied)

On the importance of marking evidence upon seizure, the Supreme Court held2:

“The first link in the chain is the marking of the seized drug. We have
previously held that:

x x x Marking after seizure is the starting point in the custodial link,

thus it is vital that the seized contraband are immediately marked
because succeeding handlers of the specimen will use the markings
as reference. The marking of the evidence serves to separate the
marked evidence from the corpus of all other similar or related
evidence from the time they are seized from the accused until they
are disposed of at the end of the criminal proceedings, obviating
switching, 'planting,' or contamination of evidence.

It is important that the seized drugs be immediately marked, if

possible, as soon as they are seized from the accused.

Furthermore, in People v. Gonzales, the Court explained that:

The first stage in the chain of custody rule is the marking of the
dangerous drugs or related items. Marking, which is the affixing
on the dangerous drugs or related items by the apprehending
officer or the poseur-buyer of his initials or signature or other
identifying signs, should be made in the presence of the
apprehended violator immediately upon arrest. The importance
of the prompt marking cannot be denied, because succeeding
handlers of dangerous drugs or related items will use the marking as
reference. Also, the marking operates to set apart as evidence the
dangerous drugs or related items from other material from the
moment they are confiscated until they are disposed of at the close
of the criminal proceedings, thereby forestalling switching, planting
or contamination of evidence. In short, the marking immediately
upon confiscation or recovery of the dangerous drugs or related
items is indispensable in the preservation of their integrity and
evidentiary value. “ (Citations omitted)

“In Sanchez, we recognized that under varied field conditions the

strict compliance with the requirements of Section 21 of R.A. No.
9165 may not always be possible, and we ruled that under the
implementing guidelines of the said Section "non-compliance with
these requirements under justifiable grounds, as long as the integrity

2
G.R. No. 208093, PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee vs.SALIM ISMAEL y
RADANG, Accused-Appellant
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and the evidentiary value of the seized items are properly preserved
by the apprehending officer/team, shall not render void and invalid
such seizures of and custody over said items." But we added that the
prosecution bears the burden of proving justifiable cause."

Thus, in Almorfe, we stressed that for the above-saving clause to

apply, the prosecution must explain the reasons behind the
procedural lapses, and that the integrity and value of the seized
evidence had nonetheless been preserved. In People v. de
Guzman, we emphasized that the justifiable ground for non-
compliance must be proven as a fact, because the Court cannot
presume what these grounds are or that they even exist.”3

(Emphasis and underscoring supplied)

PRAYER
WHEREFORE, premises considered, the accused respectfully prays that
the instant case be dismissed, for failure of the prosecution to adduce evidence
that proves his guilt beyond reasonable doubt.

The accused likewise prays for such other reliefs as may be deemed just
and equitable under the premises.

Paranaque City for the City of San Fernando, Pampanga, 2 March 2018.

JOSEPH JOHN GERALD M. AGUAS

Counsel for Accused
28 Gonzales St. Sinagtala BF Homes Paranaque City 1700
PTR No. 6367679 4 Jan 2018/IBP Lifetime No. 425593
Roll No. 38313/MCLE Compliance V No. 0021188 14 April 2016
Tel. No. 09178422668

Copy furnished:

Office of the Provincial Prosecutor

Hall of Justice, City of San Fernando
Pampanga
Received: ____________________

3
G.R. No. 203028, January 15, 2014, PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. JOSELITO BERAN y ZAPANTA @ "Jose", Accused-Appellant.