SECOND
DIVISION
REYNALDO
GONZALES y RIVERA,
Petitioner,
G. R. No. 95523
August 18, 1997
-versus-
HON.
COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES,
Respondents.
D
E C I S I O N
ROMERO, J.:
The new law,
Republic Act No. 8294,[1]
approved barely two months ago [June 6, 1997] which has lowered the
penalty
for illegal possession of firearms finds application in instant case to
favor the accused so as to immediately release him from jail where he
has
already served nine [9] years, nine [9] months and twenty-three [23]
days,
which is well beyond the maximum penalty now imposed for his offense.
Whereas
prior to the passage of this law, the crime of simple illegal
possession
of firearms was penalized with reclusion temporal in its maximum period
to reclusion perpetua,[2]
after its enactment, the penalty has been reduced to prision
correccional
in its maximum period and a fine of not less than Fifteen Thousand
Pesos
[P15,000.00].[3]
Being favorable
to the accused, this newly-enacted
law constitutes an exception to the fundamental doctrine that laws
should
be applied prospectively. Further applying the Indetermine
Sentence
Law, petitioner should be penalized with four [4] years, two [2] months
and one [1] day as minimum, to six [6] years as maximum. Petitioner,
therefore,
holds the "distinction" of being the first beneficiary of this reduced
penalty to favor him with its retroactive application.cralaw:red
The following
recital of facts constitutes the
backdrop for the application of the new law.cralaw:red
Two separate
informations were field against petitioner
Reynaldo Gonzales y Rivera involving the crimes of attempted homicide
and
violation of Presidential Decree No. 1866. The Information for
Attempted
Homicide reads as follows:
The undersigned Provincial Fiscal accuses
Reynaldo
Gonzales y Rivera of the crime of attempted homicide, penalized under
the
provisions of Article 249 in connection with Article 51 of the Revised
Penal Code, committed as follows:
That on or about the 20th day of May,
1984,
in
the municipality of San Ildefonso, province of Bulacan, Philippines,
and
within the jurisdiction of this Honorable Court, the above-named
accused,
armed with a gun [Revolver, Caliber .22, Paltik] and with
intent
to kill one Jaime Verde, did then and there wilfully, unlawfully and
feloniously
commenced the commission of homicide directly by overt acts, by then
and
there shooting with the said gun the said Jaime Verde, and if the said
accused did not accomplish his purpose, that is, to kill the said Jaime
Verde, it was not because of his spontaneous desistance, but the shot
missed
him and instead hit the ground.
The Information
for violation of P. D. No. 1866 reads:
The undersigned Provincial Fiscal accuses
Reynaldo
Gonzales y Rivera of the crime of illegal possession of firearm,
penalized
under Presidential Decree No. 1866, committed as follows:
That on or about the 20th day of May,
1984,
in
the municipality of San Ildefonso, province of Bulacan, Philippines,
and
within the jurisdiction of this Honorable Court, the said accused
Reynaldo
Gonzales y Rivera, did then and there wilfully, unlawfully, and
feloniously
have in his possession and control one [1] Revolver Caliber .22 Paltik,
without first obtaining the proper license or authority therefor.
A plea of not
guilty having been entered, trial on
the merits ensued.
The case for the
prosecution is as follows:
On May 20, 1984, Jaime, Dionisio, and
Zenaida
all surnamed Verde were in front of their house when, at about six
o'clock
in the evening, petitioner Reynaldo Gonzales and a certain Bening
Paguia
arrived in the premises. Without any provocation, petitioner started to
hurl invectives at Zenaida and pushed her. Surprised at the unprovoked
attack, Jaime tried to restrain the petitioner but instead of allowing
himself to be subdued, the latter turned on the former. Pulling out his
gun, he fired the same at Jaime but missed his mark. The incident was
thereafter
reported to the police authorities which conducted a paraffin test that
showed that petitioner's right hand was positive for gunpowder residue.
On the other
hand, the version of the defense was
as follows:
Petitioner testified that on the said
date and
time, he was with his barrio mates when suddenly, a commotion attracted
their attention. They saw a group of persons chasing an unidentified
person
who was running towards their direction with a gun in hand while the
mob
was shouting "Harangin." During the chase, the unidentified person
accidentally
fell and dropped the gun he was holding which petitioner then grabbed.
The fleeing person hastily boarded a
passing
bus. It was at this point that the Verdes, who turned out to be the
persons
giving chase, demanded the gun from the petitioner who, however,
refused
to surrender the same, as a result of which, a scuffle ensued during
which
the gun accidentally went off without hitting anybody.
After trial,
the court a quo acquitted the
petitioner of the offense of attempted homicide but found him guilty of
the offense of illegal possession of firearm, the dispositive portion
of
which reads:[4]
WHEREFORE, premises considered, for
failure of
the prosecution to prove the guilt of Reynaldo Gonzales beyond
reasonable
doubt of the charge for Attempted Homicide, he is hereby acquitted of
the
crime charged.
With respect to the charge of Illegal
Possession
of Firearms, the Court finds the accused guilty beyond reasonable doubt
and hereby sentences him to a penalty ranging from 17 years, 4 months,
1 day to 18 years, 8 months of Reclusion Temporal, without
pronouncement
as to costs.
Upon appeal to
the Court of Appeals, the petitioner
asserted that the trial court erred in not giving credence to the
defense's
narration of the incident and his guilt has not been proven beyond
reasonable
doubt. This argument did not persuade the appellate court as it held
that:[5]
Indeed, as
correctly found by the trial court,
the appellant did not grab the revolver [paltik] in question
[Exhibit
A] from the identified person that he said. He drew it from his pocket
and intentionally fired it at Jaime Verde but missed him. He was,
therefore,
in possession of it. And since it was a "paltik" for which no license
to
possess may be issued [People vs. Fajardo, 17 SCRA 494], he is guilty
of
illegal possession of firearm under Presidential Decree No. 1866.
Accordingly,
the trial court did not commit any error in finding him guilty as
charged.cralaw:red
In the instant
petition, petitioner assigns the
following errors to the trial court:
1. There is in this case material and
substantial
conflict between the version of the prosecution and that of the defense
that would lead a reasonable mind to believe the improbability of the
version
of the prosecution.
2. Respondent Court of Appeals committed
a
grave
and serious error of law in not finding/holding that the prosecution
miserably
failed to establish the motive that would support the version of the
prosecution.
3. Petitioner was not aware of any
preliminary
investigation that would create any inference adverse to his innocence.
4. The prosecution in this case failed to
prove
the guilt of the petitioner beyond reasonable doubt. Hence, the latter
is entitled to acquittal.
We affirm the
findings of the trial court and the
Court of Appeals.
The main thesis
of petitioner's defense is that
he inadvertently picked up the gun accidentally dropped by an
unidentified
person who was being chased by the Verdes. Thus, he cannot be convicted
for illegal possession of firearm.cralaw:red
Completely
contradicting petitioner's version,
we quote with approval the trial court's finding:[6]
The testimony
that the gun came from the unarmed
[should be unidentified] person who fell in front of him while being
chased
is again hard to believe. The natural reaction of a person being chased
in a hostile place is to remove hindrances along his way. If he had a
gun,
as the accused would want the court to believe, he could have used it
against
all persons who would block his way since there were shouts "harangin,
harangin." On the other hand, the actuation of the accused is
contrary
to common observation and experience. No person in his right mind would
approach a person holding a gun being chased and there were shouts "harangin,
harangin."
In addition,
petitioner's narration is not in
conformity with human experience and reactions. We likewise note the
incredible
assertion of the petitioner that the unidentified person, after
tripping
and dropping the gun, was able to board a "slow moving" but without
even
attempting to retrieve his weapon. Such a hollow tale hardly commends
itself
to our mind.cralaw:red
Also, petitioner
bewails the fact that no preliminary
investigation was conducted. While the right to preliminary
investigation
is one that is statutorily granted and not mandated by the
Constitution,
still it is a component part of due process in criminal justice[7]
that may not be treated lightly, let alone ignored. It has been
consistently
held, however, that its absence does not impair the validity of the
criminal
information or render it defective. In any case, dismissal of the case
is not the remedy.[8]
It is incumbent on the trial court to hold in abeyance the proceedings
upon such information and to remand the case to the fiscal to conduct a
preliminary investigation if the accused actually makes out a case
justifying
the same.[9]
Conversely, it is
a well-settled rule that the
right to a preliminary investigation may be waived by the failure to
invoke
it prior to or at least at the time of the accused's plea.[10]
Thus, when the petitioner entered a plea to the charge,[11]
he is deemed to have waived the right to preliminary investigation.[12]Having set aside the
procedural
aspect of this petition, we now proceed to determine whether the
petitioner
is indeed guilty of the offense of illegal possession of firearm.cralaw:red
In cases
involving illegal possession of firearm,
there are certain well-established principles, namely: (a) the
existence
of the subject firearm and (b) the fact that the accused who owned or
possessed
the firearm does not have the corresponding license or permit to
possess.[13]
The first requisite is beyond dispute as the subject firearm was
recovered,
identified and offered in evidence during trial.[14]
With respect to the second requisite, the same was undisputably proven
by the prosecution. The unvarying rule is that ownership is not an
essential
element of illegal possession of firearms and ammunition. What the law
requires is merely possession which includes, not only actual physical
possession, but also constructive possession or the subjection of the
thing
to one's control and management.[15]
In the instant
petition, there is no doubt that
the petitioner is indeed guilty of having intentionally possessed an
unlicensed
firearm. The testimony of the petitioner that he came into possession
of
the firearm only after a scuffle, is a lame defense which cannot
overcome
the solid evidence presented by the prosecution proving his guilt
beyond
reasonable doubt. On this score, we note that a prosecution witness
testified
that petitioner pulled the gun from his waist and fired a shot aimed at
Jaime Verde's foot.[16]
Thus, we have no
reservations in affirming petitioner's
conviction since we find no compelling reason to depart from the actual
findings of both the trial court and the respondent appellate court
which
are, as a rule, accorded great respect and finality.[17]
As regards the
penalty imposed by the trial court
and affirmed by the appellate court [17 years, 4 months, 1 day to 18
years,
8 months of reclusion temporal], we reduce the same in view of the
passage
of R. A. No. 8294 wherein the penalty for simple illegal possession of
firearms has been lowered. Since it is an elementary rule in criminal
jurisprudence
that penal laws shall be given retroactive effect when favorable to the
accused,[18]
we are now mandated to apply the new law in determining the proper
penalty
to be imposed on the petitioner.cralaw:red
While prior to
the passage of R. A. No. 8294,
the crime of simple illegal possession of firearm was penalized with
reclusion
temporal in its maximum period to reclusion perpetua, after its
enactment,
the penalty was reduced to prision correccional in its maximum period
and
a fine of not less than Fifteen Thousand Pesos [P15,000.00].cralaw:red
Accordingly,
applying the Intermediate Sentence
Law, the principal penalty for the offense of simple illegal possession
of firearm is four [4] years and two [2] months as minimum, to six [6]
years, as maximum[19]
and a fine of P15,000.00. Consistent with the doctrine that an appeal
in
a criminal case throws the whole case open for review, the appellate
court
may, applying the new law, additionally impose a fine, which if unpaid,
will subject the convict to subsidiary imprisonment, pursuant to Art.
39
of the Revised Penal Code.[20]
WHEREFORE, the
decision of the Court of Appeals
sustaining petitioner's conviction by the lower court of the crime of
simple
illegal possession of firearm is AFFIRMED, with the MODIFICATION that
the
penalty is reduced to "four [4] years and two [2] months, as minimum,
to
six [6] years, as maximum."
Since the
petitioner has already served nine [9]
years, nine [9] months and twenty-three [23] days, which is well beyond
the maximum principal penalty imposed for his offense, as well as the
subsidiary
penalty for the unpaid fine, he is hereby ordered RELEASED immediately,
unless he is being held for some other lawful cause.cralaw:red
SO ORDERED.cralaw:red
Regalado, Puno,
Mendoza and Torres, Jr., JJ.,
concur.cralaw:red
________________________________
Endnotes
[1]
An Act Amending The Provisions of Presidential Decree No. 1866, as
amended,
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."
[2]
P. D. No. 1866. 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.
Sec. 1. Unlawful Manufacture,
Sale, Acquisition, Disposition or Possession of Firearms or Ammunition
or Instruments Used or Intended to be Used in the Manufacture of
Firearms
or Ammunition. The penalty of reclusion temporal in its maximum
period
to reclusion perpetua shall be imposed upon any person who shall
unlawfully
manufacture, deal in, acquire, dispose, or possess any firearm, part of
firearm, ammunition or machinery, tool or instrument used or intended
to
be used in the manufacture of any firearm or ammunition.
[3]
R. A. No. 8294. Sec. 1. Unlawful Manufacture, Sale, Acquisition,
Disposition
or Possession of Firearms or Ammunition or Instruments Used or Intended
to be Used in the Manufacture of Firearms or Ammunition. The
penalty
of prision correccional in its maximum period and a fine of not
less
than Fifteen Thousand Pesos [P15,000.00] shall be imposed upon any
person
who shall unlawfully manufacture, deal in, acquire, dispose, or possess
any low powered firearm, such as rimfire handgun, .380 or .32 and other
firearm of similar firepower, part of firearm, ammunition, or
machinery,
tool or instrument used or intended to be used in the manufacture of
any
firearm or ammunition: Provided, That no other crime was committed.
[4]
Penned by Judge Narcero T. Atienza.
[5]
Ramirez, P., ponente, Ordoñez-Benitez and Rasul, JJ.,
concurring.
[6]
Rollo, p. 35.
[7]
Go v. Court of Appeals, 206 SCRA 138 [1992].
[8]
Socrates v. Sandiganbayan, 253 SCRA 773 [1996].
[9]
Sanciangco, Jr. v. People, 149 SCRA 1 [1987].
[10]
People v. Gomez, 117 SCRA 73 [1982].
[11]
Decision, Rollo, p. 33.
[12]
People v. Umberro, 196 SCRA 821 [1991].
[13]
People v. Lualhati, 234 SCRA 325 [1994].
[14]
Rollo, p. 34.
[15]
People v. De Garcia, 233 SCRA 716 [1994].
[16]
Rollo, p. 34.
[17]
People v. Cahindo, G. R. No. 121778, January 27, 1997.
[18]
Article 22, Revised Penal Code.
[19]Sec. 1, Act No. 4103, as amended.
[20]
Art. 39. Subsidiary penalty. If the convict has no property with
which to meet the fine mentioned in paragraph 3 of the next preceding
article,
he shall be subject to a subsidiary personal liability at the rate of
one
day for each eight pesos, subject to the following rules:chanroblesvirtuallawlibrary
"1. If the principal penalty
imposed be prision correccional or arresto and fine, he shall remain
under
confinement until his fine referred in the preceding paragraph is
satisfied,
but his subsidiary imprisonment shall not exceed one-third of the term
of the sentence, and in no case shall it continue for more than one
year,
and no fraction or part of a day shall be counted against the prisoner.
"xxx
xxx
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