J.A.B. Bulao & Associates

DURBAN APARTMENTS DOING BUSINESS UNDER THE NAME AND STYLE OF CITY GARDEN HOTEL VS. PIONEER INSURANCE AND SURETY CORPORATION (G.R. NO. 179419, 12 JANUARY 2011, NACHURA, J.) SUBJECTS: ABSENCE DURING PRE-TRIAL; FAILURE TO FILE PRE-TRIAL BRIEF. (BRIEF TITLE: DURBAN APARTMENTS VS. PIONEER INSURANCE.)

x————————————————————–x

DECISION

NACHURA, J.:

          For review is the Decision^[1][1] of the Court of Appeals (CA) in CA-G.R. CV No. 86869, which affirmed the decision^[2][2] of the Regional Trial Court (RTC), Branch 66, Makati City, in Civil Case No. 03-857, holding petitioner Durban Apartments Corporation solely liable to respondent Pioneer Insurance and Surety Corporation for the loss of Jeffrey See’s (See’s) vehicle.

          The facts, as found by the CA, are simple.

          On July 22, 2003, [respondent] Pioneer Insurance and Surety Corporation x x x, by right of subrogation, filed [with the RTC of Makati City] a Complaint for Recovery of Damages against [petitioner] Durban Apartments Corporation, doing business under the name and style of City Garden  Hotel, and [defendant before the RTC] Vicente Justimbaste x x x.  [Respondent averred] that: it is the insurer for loss and damage of Jeffrey S. See’s [the insured’s] 2001 Suzuki Grand Vitara x x x with Plate No. XBH-510 under Policy No. MC-CV-HO-01-0003846-00-D in the amount of P1,175,000.00; on April 30, 2002, See arrived and checked in at the City Garden Hotel in Makati corner Kalayaan Avenues, Makati City before midnight, and its parking attendant, defendant x x x Justimbaste got the key to said Vitara from See to park it[.  O]n May 1, 2002, at about 1:00 o’clock in the morning, See was awakened in his room by [a]  telephone call from the Hotel Chief Security Officer who informed him that his Vitara was carnapped while it was parked unattended at the parking area of Equitable PCI Bank along Makati Avenue between the hours of 12:00 [a.m.] and 1:00 [a.m.]; See went to see the Hotel Chief Security Officer, thereafter reported the incident to the Operations Division of the Makati City Police Anti-Carnapping Unit, and a flash alarm was issued; the Makati City Police Anti-Carnapping Unit investigated Hotel Security Officer, Ernesto T. Horlador, Jr. x x x and defendant x x x Justimbaste; See gave his Sinumpaang Salaysay to the police investigator, and filed a Complaint Sheet with the PNP Traffic Management Group in Camp Crame, Quezon City; the Vitara has not yet been recovered since July 23, 2002 as evidenced by a Certification of Non- Recovery issued by the PNP TMG; it paid the P1,163,250.00 money claim of See and mortgagee ABN AMRO Savings Bank, Inc. as indemnity for the loss of the Vitara; the Vitara was lost due to the negligence of [petitioner] Durban Apartments and [defendant] Justimbaste because it was discovered during the investigation that this was the second time that a similar incident of carnapping happened in the valet parking service of [petitioner] Durban Apartments and no necessary precautions were taken to prevent its repetition; [petitioner] Durban Apartments was wanting in due diligence in the selection and supervision of its employees particularly defendant  x x x Justimbaste; and defendant x x x Justimbaste and [petitioner] Durban Apartments failed and refused to pay its valid, just, and lawful claim despite written demands.

            Upon service of Summons, [petitioner] Durban Apartments and [defendant] Justimbaste filed their Answer with Compulsory Counterclaim alleging that: See did not check in at its hotel, on the contrary, he was a guest of a certain Ching Montero x x x; defendant x x x Justimbaste did not get the ignition key of See’s Vitara, on the contrary, it was See who requested a parking attendant to park the Vitara at any available parking space, and it was parked at the Equitable Bank parking area, which was within See’s view, while he and Montero were waiting in front of the hotel; they made a written denial of the demand of [respondent] Pioneer Insurance for want of legal basis; valet parking services are provided by the hotel for the convenience of its customers looking for a parking space near the hotel premises; it is a special privilege that it gave to Montero and See; it does not include responsibility for any losses or damages to motor vehicles and its accessories in the parking area; and the same holds true even if it was See himself who parked his Vitara within the premises of the hotel as evidenced by the valet parking customer’s claim stub issued to him; the carnapper was able to open the Vitara without using the key given earlier to the parking attendant and subsequently turned over to See after the Vitara was stolen; defendant x x x Justimbaste saw the Vitara speeding away from the place where it was parked; he tried to run after it, and blocked its possible path but to no avail; and See was duly and immediately informed of the carnapping of his Vitara; the matter was reported to the nearest police precinct; and defendant x x x Justimbaste, and Horlador submitted themselves to police investigation.

            During the pre-trial conference on November 28, 2003, counsel for [respondent] Pioneer Insurance was present. Atty. Monina Lee x x x, counsel of record of [petitioner] Durban Apartments and Justimbaste was absent, instead, a certain Atty. Nestor Mejia appeared for [petitioner] Durban Apartments and Justimbaste, but did not file their pre-trial brief.

            On November 5, 2004, the lower court granted the motion of [respondent] Pioneer Insurance, despite the opposition of [petitioner] Durban Apartments and Justimbaste, and allowed [respondent] Pioneer Insurance to present its evidence ex parte before the Branch Clerk of Court.

            See testified that: on April 30, 2002, at about 11:30 in the evening, he drove his Vitara and stopped in front of City Garden Hotel in Makati Avenue, Makati City; a parking attendant, whom he had later known to be defendant x x x Justimbaste, approached and asked for his ignition key, told him that the latter would park the Vitara for him in front of the hotel, and issued him a valet parking customer’s claim stub; he and Montero, thereafter, checked in at the said hotel; on May 1, 2002, at around 1:00 in the morning, the Hotel Security Officer whom he later knew to be Horlador called his attention to the fact that his Vitara was carnapped while it was parked at the parking lot of Equitable PCI Bank which is in front of the hotel; his Vitara was insured with [respondent] Pioneer Insurance; he together with Horlador and defendant x x x Justimbaste went to Precinct 19 of the Makati City Police to report the carnapping incident, and a police officer came accompanied them to the Anti-Carnapping Unit of the said station for investigation, taking of their sworn statements, and flashing of a voice alarm; he likewise reported the said incident in PNP TMG in Camp Crame where another alarm was issued; he filed his claim with [respondent] Pioneer Insurance, and a representative of the latter, who is also an adjuster of Vesper Insurance Adjusters-Appraisers [Vesper], investigated the incident; and [respondent] Pioneer Insurance required him to sign a Release of Claim and Subrogation Receipt, and finally paid him the sum of P1,163,250.00 for his claim.

            Ricardo F. Red testified that: he is a claims evaluator of [petitioner] Pioneer Insurance tasked, among others, with the receipt of claims and documents from the insured, investigation of the said claim, inspection of damages, taking of pictures of insured unit, and monitoring of the processing of the claim until its payment; he monitored the processing of See’s claim when the latter reported the incident to [respondent] Pioneer Insurance; [respondent] Pioneer Insurance assigned the case to Vesper who verified See’s report, conducted an investigation, obtained the necessary documents for the processing of the claim, and tendered a settlement check to See; they evaluated the case upon receipt of the subrogation documents and the adjuster’s report, and eventually recommended for its settlement for the sum of P1,163,250.00 which was accepted by See; the matter was referred and forwarded to their counsel, R.B. Sarajan & Associates, who prepared and sent demand letters to [petitioner] Durban Apartments and [defendant] Justimbaste, who did not pay [respondent] Pioneer Insurance notwithstanding their receipt of the demand letters; and the services of R.B. Sarajan & Associates were engaged, for P100,000.00 as attorney’s fees plus P3,000.00 per court appearance, to prosecute the claims of [respondent] Pioneer Insurance against [petitioner] Durban Apartments and Justimbaste before the lower court.

            Ferdinand Cacnio testified that: he is an adjuster of Vesper; [respondent] Pioneer Insurance assigned to Vesper the investigation of See’s case, and he was the one actually assigned to investigate it; he conducted his investigation of the matter by interviewing See, going to the City Garden Hotel, required subrogation documents from See, and verified the authenticity of the same; he learned that it is the standard procedure of the said hotel as regards its valet parking service to assist their guests as soon as they get to the lobby entrance, park the cars for their guests, and place the ignition keys in their safety key box; considering that the hotel has only twelve (12) available parking slots, it has an agreement with Equitable PCI Bank permitting the hotel to use the parking space of the bank at night; he also learned that a Hyundai Starex van was carnapped at the said place barely a month before the occurrence of this incident because Liberty Insurance assigned the said incident to Vespers, and Horlador and defendant x x x Justimbaste admitted the occurrence of the same in their sworn statements before the Anti-Carnapping Unit of the Makati City Police; upon verification with the PNP TMG [Unit] in Camp Crame, he learned that See’s Vitara has not yet been recovered; upon evaluation, Vesper recommended to [respondent] Pioneer Insurance to settle See’s claim for P1,045,750.00; See contested the recommendation of Vesper by reasoning out that the 10% depreciation should not be applied in this case considering the fact that the Vitara was used for barely eight (8) months prior to its loss; and [respondent] Pioneer Insurance acceded to See’s contention, tendered the sum of P1,163,250.00 as settlement, the former accepted it, and signed a release of claim and subrogation receipt.

            The lower court denied the Motion to Admit Pre-Trial Brief and Motion for Reconsideration field by [petitioner] Durban Apartments and Justimbaste in its Orders dated May 4, 2005 and October 20, 2005, respectively, for being devoid of merit.^[3][3]

          Thereafter, on January 27, 2006, the RTC rendered a decision, disposing, as follows:

            WHEREFORE, judgment is hereby rendered ordering [petitioner Durban Apartments Corporation] to pay [respondent Pioneer Insurance and Surety Corporation] the sum of P1,163,250.00 with legal interest thereon from July 22, 2003 until the obligation is fully paid and attorney’s fees and litigation expenses amounting to P120,000.00.

            SO ORDERED.^[4][4]

          On appeal, the appellate court affirmed the decision of the trial court, viz.:

          WHEREFORE, premises considered, the Decision dated January 27, 2006 of the RTC, Branch 66, Makati City in Civil Case No. 03-857 is hereby AFFIRMED insofar as it holds [petitioner] Durban Apartments Corporation solely liable to [respondent] Pioneer Insurance and Surety Corporation for the loss of Jeffrey See’s Suzuki Grand Vitara.

            SO ORDERED.^[5][5]

          Hence, this recourse by petitioner.

The issues for our resolution are:

          1.       Whether the lower courts erred in declaring petitioner as in default for failure to appear at the pre-trial conference and to file a pre-trial brief;

          2.       Corollary thereto, whether the trial court correctly allowed respondent to present evidence ex-parte;

          3.       Whether petitioner is liable to respondent for attorney’s fees in the amount of P120,000.00; and

          4.       Ultimately, whether petitioner is liable to respondent for the loss of See’s vehicle.

          The petition must fail.

          We are in complete accord with the common ruling of the lower courts that petitioner was in default for failure to appear at the pre-trial conference and to file a pre-trial brief, and thus, correctly allowed respondent to present evidence ex-parte. Likewise, the lower courts did not err in holding petitioner liable for the loss of See’s vehicle.

          Well-entrenched in jurisprudence is the rule that factual findings of the trial court, especially when affirmed by the appellate court, are accorded the highest degree of respect and are considered conclusive between the parties.^[6][6] A review of such findings by this Court is not warranted except upon a showing of highly meritorious circumstances, such as: (1) when the findings of a trial court are grounded entirely on speculation, surmises, or conjectures; (2) when a lower court’s inference from its factual findings is manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion in the appreciation of facts; (4) when the findings of the appellate court go beyond the issues of the case, or fail to notice certain relevant facts which, if properly considered, will justify a different conclusion; (5) when there is a misappreciation of facts; (6) when the findings of fact are conclusions without mention of the specific evidence on which they are based, are premised on the absence of evidence, or are contradicted by evidence on record.^[7][7] None of the foregoing exceptions permitting a reversal of the assailed decision exists in this instance.

          Petitioner urges us, however, that “strong [and] compelling reason[s]” such as the prevention of miscarriage of justice warrant a suspension of the rules and excuse its and its counsel’s non-appearance during the pre-trial conference and their failure to file a pre-trial brief.

          We are not persuaded.

          Rule 18 of the Rules of Court leaves no room for equivocation; appearance of parties and their counsel at the pre-trial conference, along with the filing of a corresponding pre-trial brief, is mandatory, nay, their duty. Thus, Section 4 and Section 6 thereof provide:

            SEC. 4.  Appearance of parties.–It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and documents.

            SEC. 6.  Pre-trial brief.–The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others:

            x x x x

            Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.

          Contrary to the foregoing rules, petitioner and its counsel of record were not present at the scheduled pre-trial conference. Worse, they did not file a pre-trial brief. Their non-appearance cannot be excused as Section 4, in relation to Section 6, allows only two exceptions: (1) a valid excuse; and (2) appearance of a representative on behalf of a party who is fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and documents.

          Petitioner is adamant and harps on the fact that November 28, 2003 was merely the first scheduled date for the pre-trial conference, and a certain Atty. Mejia appeared on its behalf. However, its assertion is belied by its own admission that, on said date, this Atty. Mejia “did not have in his possession the Special Power of Attorney issued by petitioner’s Board of Directors.”

          As pointed out by the CA, petitioner, through Atty. Lee, received the notice of pre-trial on October 27, 2003, thirty-two (32) days prior to the scheduled conference. In that span of time, Atty. Lee, who was charged with the duty of notifying petitioner of the scheduled pre-trial conference,^[8][8] petitioner, and Atty. Mejia should have discussed which lawyer would appear at the pre-trial conference with petitioner, armed with the appropriate authority therefor. Sadly, petitioner failed to comply with not just one rule; it also did not proffer a reason why it likewise failed to file a pre-trial brief. In all, petitioner has not shown any persuasive reason why it should be exempt from abiding by the rules.

          The appearance of Atty. Mejia at the pre-trial conference, without a pre-trial brief and with only his bare allegation that he is counsel for petitioner, was correctly rejected by the trial court. Accordingly, the trial court, as affirmed by the appellate court, did not err in allowing respondent to present evidence ex-parte.

          Former Chief Justice Andres R. Narvasa’s words continue to resonate, thus:

            Everyone knows that a pre-trial in civil actions is mandatory, and has been so since January 1, 1964. Yet to this day its place in the scheme of things is not fully appreciated, and it receives but perfunctory treatment in many courts. Some courts consider it a mere technicality, serving no useful purpose save perhaps, occasionally to furnish ground for non-suiting the plaintiff, or declaring a defendant in default, or, wistfully, to bring about a compromise. The pre-trial device is not thus put to full use. Hence, it has failed in the main to accomplish the chief objective for it: the simplification, abbreviation and expedition of the trial, if not indeed its dispensation. This is a great pity, because the objective is attainable, and with not much difficulty, if the device were more intelligently and extensively handled.

            x x x x

Consistently with the mandatory character of the pre-trial, the Rules oblige not only the lawyers but the parties as well to appear for this purpose before the Court, and when a party “fails to appear at a pre-trial conference (he) may be non-suited or considered as in default.” The obligation “to appear” denotes not simply the personal appearance, or the mere physical presentation by a party of one’s self, but connotes as importantly, preparedness to go into the different subject assigned by law to a pre-trial. And in those instances where a party may not himself be present at the pre-trial, and another person substitutes for him, or his lawyer undertakes to appear not only as an attorney but in substitution of the client’s person, it is imperative for that representative of the lawyer to have “special authority” to make such substantive agreements as only the client otherwise has capacity to make. That “special authority” should ordinarily be in writing or at the very least be “duly established by evidence other than the self-serving assertion of counsel (or the proclaimed representative) himself.” Without that special authority, the lawyer or representative cannot be deemed capacitated to appear in place of the party; hence, it will be considered that the latter has failed to put in an appearance at all, and he [must] therefore “be non-suited or considered as in default,” notwithstanding his lawyer’s or delegate’s presence.^[9][9]

          We are not unmindful that defendant’s (petitioner’s) preclusion from presenting evidence during trial does not automatically result in a judgment in favor of plaintiff (respondent). The plaintiff must still substantiate the allegations in its complaint.^[10][10] Otherwise, it would be inutile to continue with the plaintiff’s presentation of evidence each time the defendant is declared in default.

          In this case, respondent substantiated the allegations in its complaint, i.e., a contract of necessary deposit existed between the insured See and petitioner. On this score, we find no error in the following disquisition of the appellate court:

[The] records also reveal that upon arrival at the City Garden Hotel, See gave notice to the doorman and parking attendant of the said hotel, x x x Justimbaste, about his Vitara when he entrusted its ignition key to the latter. x x x Justimbaste issued a valet parking customer claim stub to See, parked the Vitara at the Equitable PCI Bank parking area, and placed the ignition key inside a safety key box while See proceeded to the hotel lobby to check in. The Equitable PCI Bank parking area became an annex of City Garden Hotel when the management of the said bank allowed the parking of the vehicles of hotel guests thereat in the evening after banking hours.^[11][11]

          Article 1962, in relation to Article 1998, of the Civil Code defines a contract of deposit and a necessary deposit made by persons in hotels or inns:

Art. 1962. A deposit is constituted from the moment a person receives a thing belonging to another, with the obligation of safely keeping it and returning the same. If the safekeeping of the thing delivered is not the principal purpose of the contract, there is no deposit but some other contract.

            Art. 1998. The deposit of effects made by travelers in hotels or inns shall also be regarded as necessary. The keepers of hotels or inns shall be responsible for them as depositaries, provided that notice was given to them, or to their employees, of the effects brought by the guests and that, on the part of the latter, they take the precautions which said hotel-keepers or their substitutes advised relative to the care and vigilance of their effects.

          Plainly, from the facts found by the lower courts, the insured See deposited his vehicle for safekeeping with petitioner, through the latter’s employee, Justimbaste. In turn, Justimbaste issued a claim stub to See. Thus, the contract of deposit was perfected from See’s delivery, when he handed over to Justimbaste the keys to his vehicle, which Justimbaste received with the obligation of safely keeping and returning it. Ultimately, petitioner is liable for the loss of See’s vehicle.

Lastly, petitioner assails the lower courts’ award of attorney’s fees to respondent in the amount of P120,000.00. Petitioner claims that the award is not substantiated by the evidence on record.

We disagree.

While it is a sound policy not to set a premium on the right to litigate,^[12][12] we find that respondent is entitled to reasonable attorney’s fees. Attorney’s fees may be awarded when a party is compelled to litigate or incur expenses to protect its interest,^[13][13] or when the court deems it just and equitable.^[14][14] In this case, petitioner refused to answer for the loss of See’s vehicle, which was deposited with it for safekeeping. This refusal constrained respondent, the insurer of See, and subrogated to the latter’s right, to litigate and incur expenses. However, we reduce the award of P120,000.00 to P60,000.00 in view of the simplicity of the issues involved in this case.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 86869 is AFFIRMED with the MODIFICATION that the award of attorney’s fees is reduced to P60,000.00. Costs against petitioner.

SO ORDERED.

                                      ANTONIO EDUARDO B. NACHURA

                                      Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

JOSE CATRAL MENDOZA

Associate Justice

A T T E S T A T I O N

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                 ANTONIO T. CARPIO

                                      Associate Justice

                                      Chairperson, Second Division

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                      RENATO C. CORONA

                                      Chief Justice

PEOPLE OF THE PHILIPPINES VS. FRANCISCO MANLANGIT Y TRESBALLES (G.R. NO. 189806, 12 JANUARY 2011,VELASCO, JR., J) SUBJECTS: SALE OF DANGEROUS DRUGS; ILLEGAL POSSESSION; CHAIN OF CUSTODY) BRIEF TITLE: PEOPLE VS. MANLANGIT.)

x————————————————————————————–x

===================

DISPOSITIVE:

 WHEREFORE, the appeal is DENIED.  The CA’s August 28, 2009 Decision in CA-G.R. CR-H.C. No. 03273 is hereby AFFIRMED IN TOTO.

        No costs.

        SO ORDERED.

===================

SUBJECT/DOCTRINE/DIGEST:

WHAT ARE PUNISHABLE UNDER R.A. 9165?

SALE, TRADING, ADMINISTRATION, DISPENSATION, DELIVERY, DISTRIBUTION AND TRANSPORTATION OF DANGEROUS DRUGS AND/OR CONTROLLED PRECURSORS AND ESSENTIAL CHEMICALS

USE OF DANGEROUS DRUGS.

        The first paragraph of Sec. 5 of RA 9165 punishes the act of selling dangerous drugs.  It provides:

Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.¾The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.  (Emphasis supplied.)

        While Sec. 15, RA 9165 states:

Section 15. Use of Dangerous Drugs.¾A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00): Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply. (Emphasis supplied.)

XXXXXXXXXXXXXXXXX

WHAT ARE THE REQUIREMENTS FOR THE SUCCESSFUL PROSECUTION OF THE CRIME OF ILLEGAL SALE OF DANGEROUS DRUGS?

(1)            THE IDENTITY OF THE BUYER AND THE SELLER, THE OBJECT, AND CONSIDERATION;

(2)               AND  THE DELIVERY OF THE THING SOLD AND THE PAYMENT THEREFOR. 

WHAT IS MATERIAL TO THE PROSECUTION FOR ILLEGAL SALE OF DANGEROUS DRUGS IS THE PROOF THAT THE TRANSACTION OR SALE ACTUALLY TOOK PLACE, COUPLED WITH THE PRESENTATION IN COURT OF EVIDENCE OF CORPUS DELICTI.

        People v. Macatingag^[1][11] prescribed the requirements for the successful prosecution of the crime of illegal sale of dangerous drugs, as follows.

        The elements necessary for the prosecution of illegal sale of drugs are (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.  What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.

XXXXXXXXXXXXXXXXXX

IN THIS  CASE DID  THE PIECES OF EVIDENCE COMPLY WITH THE ABOVE REQUIREMENTS?

YES.

        The pieces of evidence found in the records amply demonstrate that all the elements of the crimes charged were satisfied.  The lower courts gave credence to the prosecution witnesses’ testimonies, which established the guilt of accused-appellant for the crimes charged beyond reasonable doubt.  The testimonies––particularly those of the police officers involved, which both the RTC and the CA found credible––are now beyond question.  As the Court ruled in Aparis v. People:^[2][12]

As to the question of credibility of the police officers who served as principal witnesses for the prosecution, settled is the rule that prosecutions involving illegal drugs depend largely on the credibility of the police officers who conducted the buy-bust operation. It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors; gross misapprehension of facts; or speculative, arbitrary, and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses, having heard their testimonies and observed their deportment and manner of testifying during the trial. The rule finds an even more stringent application where said findings are sustained by the Court of Appeals, as in the present case.

XXXXXXXXXXXXX

HOW ABOUT THE ACCUSED’S DEFENSE OF DENIAL?

THE DEFENSE OF DENIAL HAS NO SUBSTANTIAL EVIDENCE TO SUPPORT IT. THEREFORE IT CANNOT OVERCOME THE PRESUMPTION OF REGULARITY OF THE POLICE OFFICERS’ PERFORMANCE OF OFFICIAL FUNCTIONS.

NOTE: DENIAL IS OK AS DEFENSE BUT IT MUST BE BACKED BY SUBSTANTIAL EVIDENCE.

        Moreover, accused-appellant’s defense of denial, without substantial evidence to support it, cannot overcome the presumption of regularity of the police officers’ performance of official functions.  Thus, the Court ruled in People v. Llamado:^[3][13]

In cases involving violations of Dangerous Drugs Act, credence should be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there be evidence to the contrary.  Moreover, in the absence of proof of motive to falsely impute such a serious crime against the appellant, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over appellant’s self-serving and uncorroborated denial. (Emphasis supplied.)

XXXXXXXXXXXXX

DEFENSE ARGUED THAT THE BUY-BUST OPERATION IS NOT VALID BECAUSE THERE WAS NO PRIOR SURVEILLANCE OR TEST BUY. IS THIS ARGUMENT CORRECT?

NO.

PRIOR SURVEILLANCE OR TEST BUY IS NOT NECESSARY AS LONG AS THE OPERATIVES ARE ACCOMPANIED BY THEIR INFORMANT.

Contrary to accused-appellant’s challenge to the validity of the buy-bust operation, the Court categorically stated in Quinicot v. People that a prior surveillance or test buy is not required for a valid buy-bust operation, as long as the operatives are accompanied by their informant, thus:

          Settled is the rule that the absence of a prior surveillance or test buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers. A prior surveillance, much less a lengthy one, is not necessary, especially where the police operatives are accompanied by their informant during the entrapment. Flexibility is a trait of good police work. We have held that when time is of the essence, the police may dispense with the need for prior surveillance. In the instant case, having been accompanied by the informant to the person who was peddling the dangerous drugs, the policemen need not have conducted any prior surveillance before they undertook the buy-bust operation.^[4][14] (Emphasis supplied.)

XXXXXXXXXXXX

DEFENSE ARGUED THAT THE BUY-BUST OPERATION WAS NOT VALID BECAUSE THERE WAS NO SEARCH WARRANT. IS THIS ARGUMENT CORRECT?

NO. WARRANTLESS ARREST IS ALLOWED UNDER THE LAW.

Furthermore, accused-appellant’s contention that the buy-bust team should have procured a search warrant for the validity of the buy-bust operation is misplaced. The Court had the occasion to address this issue in People v. Doria:^[5][15]

We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:

“Sec. 5. Arrest without warrant; when lawful.¾A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.”

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he “has committed, is actually committing, or is attempting to commit an offense.” Appellant Doria was caught in the act of committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound to arrest him even without a warrant.

        The Court reiterated such ruling in People v. Agulay:^[6][16]

Accused-appellant contends his arrest was illegal, making the sachets of shabu allegedly recovered from him inadmissible in evidence.  Accused-appellant’s claim is devoid of merit for it is a well-established rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid “warrantless arrest,” in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court, to wit:

Section 5. Arrest without warrant; when lawful.¾A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.

A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid and effective mode of apprehending drug pushers.  In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction.

XXXXXXXXXXXXXXXX

ACCUSED ARGUES THAT THE ARRESTING OFFICERS DID NOT COMPLY WITH THE RULE ON HANDLING THE SEIZED DRUGS. SPECIFICALLY THE MARKING OF THE SPECIMEN WAS DONE IN THE PLACE OF INCIDENT BY MADAC OPERATIVE SORIANO, THE INVENTORY OF THE ITEM WAS DONE AT CLUSTER 4. THERE WAS NO PHOTOGRAPH MADE OF THE PLASTIC SACHET IN THE PRESENCE OF THE ACCUSED, MEDIA, ANY ELECTED LOCAL OFFICIAL, OR THE DOJ. IS THIS  CONTENTION CORRECT?

NO. THE PROSECUTION EVIDENCE HAD ESTABLISHED THE UNBROKEN CHAIN OF CUSTODY OF THE SEIZED DRUGS FROM THE BUY-BUST TEAM, TO THE INVESTIGATING OFFICER AND TO THE FORENSIC CHEMIST. THUS, THERE IS NO DOUBT THAT THE PROHIBITED DRUG PRESENTED BEFORE THE COURT A QUO WAS THE ONE SEIZED FROM APPELLANT AND THAT INDEED, HE COMMITTED THE CRIMES IMPUTED AGAINST HIM.

NON-COMPLIANCE WITH THE  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 RENDER VOID AND INVALID SUCH SEIZURES OF AND CUSTODY OVER SAID ITEMS.

NOTE THE KEY CLAUSE: THE INTEGRITY AND THE EVIDENTIARY VALUE OF THE SEIZED ITEMS ARE PROPERLY PRESERVED BY THE APPREHENDING OFFICER/TEAM.

        Accused-appellant contends that the arresting officers did not comply with the requirements for the handling of seized dangerous drugs as provided for under Sec. 21(1) of RA 9165:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment.¾The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(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; (Emphasis supplied.)

        In particular, accused-appellant argues that:

While the marking of the specimen was done in the place of incident by MADAC operative Soriano, the inventory of the item was done at Cluster 4. There was no photograph made of the plastic sachet in the presence of the accused, media, any elected local official, or the DOJ representatives, in clear violation of Section 21, R.A. No. 9165.^[7][17]

        Based on such alleged failure of the buy-bust team to comply with the procedural requirements of Sec. 21, RA 9165, accused-appellant posits that he should, therefore, be acquitted. Such reasoning is flawed.

        In People v. Rosialda,^[8][18] the Court addressed the issue of chain of custody of dangerous drugs, citing People v. Rivera, as follows:

Anent the second element, Rosialda raises the issue that there is a violation of Sec. 21, Art. II of RA 9165, particularly the requirement that the alleged dangerous drugs seized by the apprehending officers be photographed “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.”  Rosialda argues that such failure to comply with the provision of the law is fatal to his conviction.

This contention is untenable.

The Court made the following enlightening disquisition on this matter in People v. Rivera:

The procedure to be followed in the custody and handling of seized dangerous drugs is outlined in Section 21, paragraph 1, Article II of Republic Act No. 9165 which stipulates:

(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.

The same is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, viz.:

(a) 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: 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 render void and invalid such seizures of and custody over said items.

The failure of the prosecution to show that the police officers conducted the required physical inventory and photograph of the evidence confiscated pursuant to said guidelines, is not fatal and does not automatically render accused-appellant’s arrest illegal or the items seized/confiscated from him inadmissible. Indeed, the implementing rules offer some flexibility when a proviso added 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 render void and invalid such seizures of and custody over said items.’ The same provision clearly states as well, that it must still be shown that there exists justifiable grounds and proof that the integrity and evidentiary value of the evidence have been preserved.

This Court can no longer find out what justifiable reasons existed, if any, since the defense did not raise this issue during trial. Be that as it may, this Court has explained in People v. Del Monte that what is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. The existence of the dangerous drug is a condition sine qua non for conviction for the illegal sale of dangerous drugs. The dangerous drug itself constitutes the very corpus delicti of the crime and the fact of its existence is vital to a judgment of conviction. Thus, it is essential that the identity of the prohibited drug be established beyond doubt. The chain of custody requirement performs the function of ensuring that the integrity and evidentiary value of the seized items are preserved, so much so that unnecessary doubts as to the identity of the evidence are removed.

To be admissible, the prosecution must show by records or testimony, the continuous whereabouts of the exhibit at least between the time it came into possession of the police officers and until it was tested in the laboratory to determine its composition up to the time it was offered in evidence. (Emphasis supplied.)

        Here, accused-appellant does not question the unbroken chain of evidence. His only contention is that the buy-bust team did not inventory and photograph the specimen on site and in the presence of accused-appellant or his counsel, a representative from the media and the Department of Justice, and any elected public official. However, as ruled by the Court in Rosialda, as long as the chain of custody remains unbroken, even though the procedural requirements provided for in Sec. 21 of RA 9165 was not faithfully observed, the guilt of the accused will not be affected.

        And as aptly ruled by the CA, the chain of custody in the instant case was not broken as established by the facts proved during trial, thus:

        Lastly, the contention of appellant, that the police officers failed to comply with the provisions of paragraph 1, Section 21 of R.A. No. 9165 for the proper procedure in the custody and disposition of the seized drugs, is untenable. Record shows that Serrano marked the confiscated sachet of shabu in the presence of appellant at the place of incident and was turned over properly to the investigating officer together with the marked buy-bust money. Afterwards, the confiscated plastic sachet suspected to be containing “shabu” was brought to the forensic chemist for examination. Likewise, the members of the buy-bust team executed their “Pinagsanib na Salaysay sa Pag-aresto” immediately after the arrest and at the trial, Serrano positively identified the seized drugs. Indeed, the prosecution evidence had established the unbroken chain of custody of the seized drugs from the buy-bust team, to the investigating officer and to the forensic chemist. Thus, there is no doubt that the prohibited drug presented before the court a quo was the one seized from appellant and that indeed, he committed the crimes imputed against him.

===================

D E C I S I O N

VELASCO, JR., J.:

The Case

        This is an appeal from the August 28, 2009 Decision^[9][1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03273, which affirmed in toto the Decision dated July 12, 2007^[10][2] in Criminal Case Nos. 03-4735 and 03-4961 of the Regional Trial Court (RTC), Branch 64 in Makati City.  The RTC found accused-appellant Francisco Manlangit y Tresballes guilty of drug-sale and drug-use penalized by Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The Facts

        On November 25, 2003, an information was filed charging Manlangit with violating Section 5, Article II of RA 9165, as follows:

That on or about the 24^th day of November 2003, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized by law, did then and there willfully and feloniously sell, give away, distribute and deliver zero point zero four (0.04) gram of Methylamphetamine Hydrochloride (shabu), which is a dangerous drug.^[11][3]

On December 11, 2003, another information was filed against Manlangit for breach of Sec. 15, Art. II of RA 9165, to wit:

That sometime on or before or about the 24^th day of November 2003, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to use dangerous drugs, and having been arrested and found positive for use of Methylamphetamine, after a confirmatory test, did then and there willfully, unlawfully and feloniously use Methylamphetamine, a dangerous drug in violation of the said law.^[12][4]

During the arraignment for both cases, Manlangit pleaded not guilty.  Afterwards, the cases were tried jointly.

At the trial of the case, the prosecution adduced evidence as follows:

On November 24, 2003, the Makati Anti-Drug Abuse Council (MADAC) Cluster 4 office received information from an informant that a certain “Negro” was selling prohibited drugs alongCol. Santos Streetat Brgy. South Cembo,MakatiCity.  The MADAC thereafter coordinated with the Anti-Illegal Drugs Special Operations Task Force (AIDSTOF) and the Philippine Drug Enforcement Agency to conduct a joint MADAC-police buy-bust operation.  A team was assembled composed of several members of the different offices, among which Police Officer 2 Virginio Costa was designated as the team leader, with MADAC operative Wilfredo Serrano as the poseur-buyer and Roberto Bayona as his back-up.  The team prepared buy-bust money for the operation, marking two (2) one hundred peso (PhP 100) bills with the initials “AAM.”

Upon arrival on Col. Santos Street, Brgy. Cembo, MakatiCity, the team spotted Manlangit standing in front of his house.  The informant approached Manlangit and convinced the latter that Serrano wanted to purchase shabu from him.  Manlangit asked Serrano how much shabu he wanted, to  which  Serrano  replied that  he  wanted  two  hundred pesos (PhP 200) worth of shabu.  Manlangit went inside his house and later reappeared with a plastic sachet containing a white crystalline substance.  Manlangit handed over the plastic sachet to Serrano who, in turn, gave Manlangit the marked money.  Then Serrano gave the pre-arranged signal of lighting a cigarette to indicate to the rest of the team that the buy-bust operation had been consummated.  Thus, the rest of the team approached Manlangit and proceeded to arrest him while informing him of constitutional rights and the reason for his arrest.  The marked money was recovered from Manlangit’s pocket.  The plastic sachet was then marked with the initials “FTM” and sent to the Philippine National Police (PNP) crime laboratory in Camp Crame, Quezon City for analysis.  The PNP crime laboratory identified the white crystalline substance as Methylamphetamine Hydrochloride in Chemistry Report No. D-1190-03. Manlangit was also brought to the PNP crime laboratory for a drug test, which yielded a positive result for use of Methylamphetamine Hydrochloride.^[13][5]

Manlangit denied that such buy-bust operation was conducted and claimed that the recovered shabu was not from him. He claimed that he was pointed out by a certain Eli Ballesteros to Serrano and Bayona.  Thereafter, he was allegedly detained at the Barangay Hall of Brgy. Pitogo.  There, he was allegedly interrogated by Serrano as to the location of the shabu and its proceeds, as well as the identity of the drug pushers in the area.  He also claimed that whenever he answered that he did not know what Serrano was talking about, he was boxed in the chest.  Later on, he said that he was brought to Camp Crame for drug testing.^[14][6]

On July 12, 2007, the RTC rendered a Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1)      In Criminal Case No. 03-4735, finding accused Francisco Manlangit y Tresballes GUILTY BEYOND REASONABLE DOUBT  of Violation of Section 5, Art II, RA 9165 (drug-sale) and sentencing him to suffer the penalty of life imprisonment and to pay a fine in the amount of P500,000.00. Said accused shall be given credit for the period of his preventive detention.

2)      In Criminal Case No. 03-4735,^[15][7] finding accused Francisco Manlangit y Tresballes GUILTY BEYOND REASONABLE DOUBT of Violation of Section 15, Art II, RA 9165 (drug-use), and sentencing him to undergo rehabilitation for at least six (6) months in a government rehabilitation Center under the auspices of the Bureau of Correction subject to the provisions of Article VIII, RA 9165.

It is further ordered that the plastic sachet containing shabu, subject of Criminal Case No. 03-4735, be transmitted to the Philippine Drug Enforcement Agency (PDEA) for the latter’s appropriate action.

SO ORDERED.^[16][8]

From such Decision, Manlangit interposed an appeal with the CA.

In his Brief, accused-appellant Manlangit claimed that the prosecution failed to prove his guilt beyond reasonable doubt.  To support such contention, accused-appellant claimed that there was no buy-bust operation conducted.  He pointed out that he was not in the list of suspected drug pushers of MADAC or of the AIDSTOF.  He further emphasized that the buy-bust operation was conducted without first conducting a surveillance or test buy to determine the veracity of the report made by the informant.  He assailed the fact that despite knowledge of his identity and location, the buy-bust team failed to secure even a search warrant.

Accused-appellant also raised the issue that the buy-bust team failed to comply with the procedure for the custody and control of seized prohibited drugs under Sec. 21 of RA 9165. He argued that the presumption of regularity in the performance of official function was overturned by the officers’ failure to follow the required procedure in the conduct of a buy-bust operation, as well as the procedure in the proper disposition, custody, and control of the subject specimen.

On August 28, 2009, the CA rendered the decision which affirmed the RTC’s Decision dated July 12, 2007. It ruled that contrary to accused-appellant’s contention, prior surveillance is not a prerequisite for the validity of a buy-bust operation.  The case was a valid example of a warrantless arrest, accused-appellant having been caught in flagrante delicto.  The CA further stated that accused-appellant’s unsubstantiated allegations are insufficient to show that the witnesses for the prosecution were actuated by improper motive, in this case the members of the buy-bust team; thus, their testimonies are entitled to full faith and credit. After examining the testimonies of the witnesses, the CA found them credible and found no reason to disturb the RTC’s findings.  Finally, the CA found that chain of evidence was not broken.

Hence, the instant appeal.

In a Manifestation (In lieu of Supplemental Brief) dated February 22, 2010, accused-appellant expressed his desire not to file a supplemental brief and reiterated the same arguments already presented before the trial and appellate courts.

The Issues

        The issues, as raised in the Brief for the Accused-Appellant dated September 29, 2008, are:

1.      The Court a quo gravely erred in convicting the accused-appellant despite the prosecution’s failure to prove his built beyond reasonable doubt.^[17][9]

2.      The Court a quo gravely erred in finding that the procedure for the custody and control of prohibited drugs was complied with.^[18][10]

The Ruling of the Court

The appeal is bereft of merit.  

First Issue:

Accused-appellant’s guilt was proved beyond reasonable doubt

        The first paragraph of Sec. 5 of RA 9165 punishes the act of selling dangerous drugs.  It provides:

Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.¾The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.  (Emphasis supplied.)

        While Sec. 15, RA 9165 states:

Section 15. Use of Dangerous Drugs.¾A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00): Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply. (Emphasis supplied.)

        People v. Macatingag^[19][11] prescribed the requirements for the successful prosecution of the crime of illegal sale of dangerous drugs, as follows.

        The elements necessary for the prosecution of illegal sale of drugs are (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.  What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.

        The pieces of evidence found in the records amply demonstrate that all the elements of the crimes charged were satisfied.  The lower courts gave credence to the prosecution witnesses’ testimonies, which established the guilt of accused-appellant for the crimes charged beyond reasonable doubt.  The testimonies––particularly those of the police officers involved, which both the RTC and the CA found credible––are now beyond question.  As the Court ruled in Aparis v. People:^[20][12]

As to the question of credibility of the police officers who served as principal witnesses for the prosecution, settled is the rule that prosecutions involving illegal drugs depend largely on the credibility of the police officers who conducted the buy-bust operation. It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors; gross misapprehension of facts; or speculative, arbitrary, and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses, having heard their testimonies and observed their deportment and manner of testifying during the trial. The rule finds an even more stringent application where said findings are sustained by the Court of Appeals, as in the present case.

        Moreover, accused-appellant’s defense of denial, without substantial evidence to support it, cannot overcome the presumption of regularity of the police officers’ performance of official functions.  Thus, the Court ruled in People v. Llamado:^[21][13]

In cases involving violations of Dangerous Drugs Act, credence should be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there be evidence to the contrary.  Moreover, in the absence of proof of motive to falsely impute such a serious crime against the appellant, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over appellant’s self-serving and uncorroborated denial. (Emphasis supplied.)

Contrary to accused-appellant’s challenge to the validity of the buy-bust operation, the Court categorically stated in Quinicot v. People that a prior surveillance or test buy is not required for a valid buy-bust operation, as long as the operatives are accompanied by their informant, thus:

          Settled is the rule that the absence of a prior surveillance or test buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers. A prior surveillance, much less a lengthy one, is not necessary, especially where the police operatives are accompanied by their informant during the entrapment. Flexibility is a trait of good police work. We have held that when time is of the essence, the police may dispense with the need for prior surveillance. In the instant case, having been accompanied by the informant to the person who was peddling the dangerous drugs, the policemen need not have conducted any prior surveillance before they undertook the buy-bust operation.^[22][14] (Emphasis supplied.)

Furthermore, accused-appellant’s contention that the buy-bust team should have procured a search warrant for the validity of the buy-bust operation is misplaced. The Court had the occasion to address this issue in People v. Doria:^[23][15]

We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:

“Sec. 5. Arrest without warrant; when lawful.¾A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.”

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he “has committed, is actually committing, or is attempting to commit an offense.” Appellant Doria was caught in the act of committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound to arrest him even without a warrant.

        The Court reiterated such ruling in People v. Agulay:^[24][16]

Accused-appellant contends his arrest was illegal, making the sachets of shabu allegedly recovered from him inadmissible in evidence.  Accused-appellant’s claim is devoid of merit for it is a well-established rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid “warrantless arrest,” in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court, to wit:

Section 5. Arrest without warrant; when lawful.¾A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.

A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid and effective mode of apprehending drug pushers.  In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction.

Second Issue:

The chain of custody of the seized drug was unbroken

        Accused-appellant contends that the arresting officers did not comply with the requirements for the handling of seized dangerous drugs as provided for under Sec. 21(1) of RA 9165:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment.¾The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(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; (Emphasis supplied.)

        In particular, accused-appellant argues that:

While the marking of the specimen was done in the place of incident by MADAC operative Soriano, the inventory of the item was done at Cluster 4. There was no photograph made of the plastic sachet in the presence of the accused, media, any elected local official, or the DOJ representatives, in clear violation of Section 21, R.A. No. 9165.^[25][17]

        Based on such alleged failure of the buy-bust team to comply with the procedural requirements of Sec. 21, RA 9165, accused-appellant posits that he should, therefore, be acquitted. Such reasoning is flawed.

        In People v. Rosialda,^[26][18] the Court addressed the issue of chain of custody of dangerous drugs, citing People v. Rivera, as follows:

Anent the second element, Rosialda raises the issue that there is a violation of Sec. 21, Art. II of RA 9165, particularly the requirement that the alleged dangerous drugs seized by the apprehending officers be photographed “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.”  Rosialda argues that such failure to comply with the provision of the law is fatal to his conviction.

This contention is untenable.

The Court made the following enlightening disquisition on this matter in People v. Rivera:

The procedure to be followed in the custody and handling of seized dangerous drugs is outlined in Section 21, paragraph 1, Article II of Republic Act No. 9165 which stipulates:

(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.

The same is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, viz.:

(a) 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: 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 render void and invalid such seizures of and custody over said items.

The failure of the prosecution to show that the police officers conducted the required physical inventory and photograph of the evidence confiscated pursuant to said guidelines, is not fatal and does not automatically render accused-appellant’s arrest illegal or the items seized/confiscated from him inadmissible. Indeed, the implementing rules offer some flexibility when a proviso added 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 render void and invalid such seizures of and custody over said items.’ The same provision clearly states as well, that it must still be shown that there exists justifiable grounds and proof that the integrity and evidentiary value of the evidence have been preserved.

This Court can no longer find out what justifiable reasons existed, if any, since the defense did not raise this issue during trial. Be that as it may, this Court has explained in People v. Del Monte that what is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. The existence of the dangerous drug is a condition sine qua non for conviction for the illegal sale of dangerous drugs. The dangerous drug itself constitutes the very corpus delicti of the crime and the fact of its existence is vital to a judgment of conviction. Thus, it is essential that the identity of the prohibited drug be established beyond doubt. The chain of custody requirement performs the function of ensuring that the integrity and evidentiary value of the seized items are preserved, so much so that unnecessary doubts as to the identity of the evidence are removed.

To be admissible, the prosecution must show by records or testimony, the continuous whereabouts of the exhibit at least between the time it came into possession of the police officers and until it was tested in the laboratory to determine its composition up to the time it was offered in evidence. (Emphasis supplied.)

        Here, accused-appellant does not question the unbroken chain of evidence. His only contention is that the buy-bust team did not inventory and photograph the specimen on site and in the presence of accused-appellant or his counsel, a representative from the media and the Department of Justice, and any elected public official. However, as ruled by the Court in Rosialda, as long as the chain of custody remains unbroken, even though the procedural requirements provided for in Sec. 21 of RA 9165 was not faithfully observed, the guilt of the accused will not be affected.

        And as aptly ruled by the CA, the chain of custody in the instant case was not broken as established by the facts proved during trial, thus:

        Lastly, the contention of appellant, that the police officers failed to comply with the provisions of paragraph 1, Section 21 of R.A. No. 9165 for the proper procedure in the custody and disposition of the seized drugs, is untenable. Record shows that Serrano marked the confiscated sachet of shabu in the presence of appellant at the place of incident and was turned over properly to the investigating officer together with the marked buy-bust money. Afterwards, the confiscated plastic sachet suspected to be containing “shabu” was brought to the forensic chemist for examination. Likewise, the members of the buy-bust team executed their “Pinagsanib na Salaysay sa Pag-aresto” immediately after the arrest and at the trial, Serrano positively identified the seized drugs. Indeed, the prosecution evidence had established the unbroken chain of custody of the seized drugs from the buy-bust team, to the investigating officer and to the forensic chemist. Thus, there is no doubt that the prohibited drug presented before the court a quo was the one seized from appellant and that indeed, he committed the crimes imputed against him.

WHEREFORE, the appeal is DENIED.  The CA’s August 28, 2009 Decision in CA-G.R. CR-H.C. No. 03273 is hereby AFFIRMED IN TOTO.

        No costs.

        SO ORDERED.

PRESBITERO J. VELASCO, JR.

                                                        Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

TERESITA J. LEONARDO-DE CASTRO        MARIANO C. DEL CASTILLO

    Associate Justice                                  Associate Justice

JOSE PORTUGAL PEREZ

                                       Associate Justice

C E R T I F I C A T I O N

        Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                        RENATO C. CORONA

Chief Justice

RE: G.R. NO. 191721: PEOPLE OF THE PHILIPPINES VS. ROGELIO DOLORIDO Y ESTRADA (G.R. NO. 191721, 12 JANUARY 2011, VELASCO, JR., J.) SUBJECTS: ELEMENTS OF SELF DEFENSE; UNLAWFUL AGRESSION; TREACHERY; ELEMENTS OF MURDER; AWARD OF DAMAGES IN MURDER. (BRIEF TITLE: PEOPLE VS. DOLORIDO)

x————————————————————————————–x

===================================

SUBJECTS/ DOCTRINES:

SUBJECT: WHAT ARE THE ESSENTIAL ELEMENTS OF SELF DEFENSE?

(1) UNLAWFUL AGGRESSION ON THE PART OF THE VICTIM; (2) REASONABLE NECESSITY OF THE MEANS EMPLOYED TO PREVENT OR REPEL SUCH AGGRESSION; AND (3) LACK OF SUFFICIENT PROVOCATION ON THE PART OF THE PERSON RESORTING TO SELF-DEFENSE.

In order for self-defense to be successfully invoked, the following essential elements must be proved: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression; and (3) lack of sufficient provocation on the part of the person resorting to self-defense.^[1][11]

WHAT IS THE MOST IMPORTANT OF THESE ELEMENTS?

UNLAWFUL AGGRESSION. UNLAWFUL AGGRESSION MUST BE PROVED FIRST IN ORDER FOR SELF-DEFENSE TO BE SUCCESSFULLY PLEADED, WHETHER COMPLETE OR INCOMPLETE.

A person who invokes self-defense has the burden of proof of proving all the elements.^[2][12] However, the most important among all the elements is the element of unlawful aggression. Unlawful aggression must be proved first in order for self-defense to be successfully pleaded, whether complete or incomplete. As this Court said in People v. Catbagan,^[3][13] “There can be no self-defense, whether complete or incomplete, unless the victim had committed unlawful aggression against the person who resorted to self-defense.”

SUBJECT: WHAT IS UNLAWFUL AGGRESSION?

UNLAWFUL AGGRESSION IS AN ACTUAL PHYSICAL ASSAULT, OR AT LEAST A THREAT TO INFLICT REAL IMMINENT INJURY, UPON A PERSON.

Unlawful aggression is an actual physical assault, or at least a threat to inflict real imminent injury, upon a person.^[4][15]  In case of threat, it must be offensive and strong, positively showing the wrongful intent to cause injury.^[5][16]  It “presupposes actual, sudden, unexpected or imminent danger – not merely threatening and intimidating action.”^[6][17]  It is present “only when the one attacked faces real and immediate threat to one’s life.”^[7][18]

SUBJECT: WHEN IS PLEA OF SELF DEFENSE JUSTIFIED?

IT MUST BE CREDIBLE AND CORROBORATED.

Indeed, it is a well-settled rule that “a plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but is also extremely doubtful in itself.”^[8][19]  Moreover, “[a]bsent any showing that the prosecution witnesses were moved by improper motive to testify against the appellant, their testimonies are entitled to full faith and credit.”^[9][20]

SUBJECT: WHAT IS TREACHERY?

THE DIRECT EMPLOYMENT OF MEANS, METHODS, OR FORMS IN THE EXECUTION OF THE CRIME AGAINST PERSONS WHICH TEND DIRECTLY AND SPECIALLY TO INSURE ITS EXECUTION, WITHOUT RISK TO THE OFFENDER ARISING FROM THE DEFENSE WHICH THE OFFENDED PARTY MIGHT MAKE.

Paragraph 16 of Article 14 of the Revised Penal Code (RPC) defines treachery as the direct employment of means, methods, or forms in the execution of the crime against persons which tend directly and specially to insure its execution, without risk to the offender arising from the defense which the offended party might make.

SUBJECT: WHAT ARE THE ELEMENTS OF TREACHERY?

AT THE TIME OF THE ATTACK, THE VICTIM WAS NOT IN A POSITION TO DEFEND HIMSELF; AND (2) THE ACCUSED CONSCIOUSLY AND DELIBERATELY ADOPTED THE PARTICULAR MEANS, METHODS OR FORMS OF ATTACK EMPLOYED BY HIM.^[10][21]

. . . In order for treachery to be properly appreciated, two elements must be present: (1) at the time of the attack, the victim was not in a position to defend himself; and (2) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him.^[11][21] 

WHAT IS THE ESSENCE OF TREACHERY?

THE “ESSENCE OF TREACHERY IS THE SUDDEN AND UNEXPECTED ATTACK BY AN AGGRESSOR ON THE UNSUSPECTING VICTIM, DEPRIVING THE LATTER OF ANY CHANCE TO DEFEND HIMSELF AND THEREBY ENSURING ITS COMMISSION WITHOUT RISK OF HIMSELF.”^[12][22]

WHAT IS DECISIVE IS THAT THE ATTACK WAS EXECUTED IN A MANNER THAT THE VICTIM WAS RENDERED DEFENSELESS AND UNABLE TO RETALIATE.

In the case at bar, it was clearly shown that Estose was deprived of any means to ward off the sudden and unexpected attack by accused-appellant. The evidence showed that accused-appellant hid behind a coconut tree and when Estose passed by the tree, completely unaware of any danger, accused-appellant immediately hacked him with a bolo.  Estose could only attempt to parry the blows with his bare hands and as a result, he got wounded.  Furthermore, when Estose tried to retreat, stumbling in the process, accused-appellant even took advantage of this and stabbed him resulting in his death. Evidently, the means employed by accused-appellant assured himself of no risk at all arising from the defense which the deceased might make.  What is decisive is that the attack was executed in a manner that the victim was rendered defenseless and unable to retaliate.^[13][23] Without a doubt, treachery attended the killing.

SUBJECT: WHEN DOES SC FINDS NO REASON TO DISTURB THE FINDINGS OF THE TRIAL COURT?

Thus, this Court finds no reason to disturb the findings of the trial court when it gave credence to the testimony of the prosecution witnesses. It is well-entrenched in our jurisprudence “x x x that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and note their demeanor, conduct and attitude under grilling examination.”^[14][24] This rule is even more binding and conclusive when affirmed by the appellate court.^[15][25]

SUBJECT: WHAT ARE THE DAMAGES DUE IN MURDER CASE?

(1) CIVIL INDEMNITY EX DELICTO FOR THE DEATH OF THE VICTIM; (2) ACTUAL OR COMPENSATORY DAMAGES; (3) MORAL DAMAGES; (4) EXEMPLARY DAMAGES; AND (5) TEMPERATE DAMAGES.”^[16][28]   AND SIX PERCENT INTEREST.

This Court has held in People v. Beltran, Jr. that “[w]hen death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.”^[17][28]

Hence, in line with our ruling in People v. Sanchez,^[18][29] when the imposable penalty for the crime is reclusion perpetua, the damages to be imposed are: PhP 50,000 as civil indemnity, PhP 50,000 as moral damages, and PhP 30,000 as exemplary damages.  These are the amounts proper in this case because of the appreciation of the mitigating circumstance of voluntary surrender without any aggravating circumstance to offset it.

As to the award of temperate damages in the amount of PhP 25,000, such is proper “in homicide or murder cases when no evidence of burial and funeral expenses is presented in the trial court.”^[19][30]  Under Art. 2224 of the Civil Code, temperate damages may be recovered as it cannot be denied that the heirs of the victims suffered pecuniary loss although the exact amount was not proved.^[20][31]  Therefore, we sustain the award of the trial court of PhP 25,000 for temperate damages.

Finally, interest at the rate of six (6) percent should likewise be added to the damages awarded.^[21][32]

WHEREFORE, the appeal is DENIED.  The CA Decision in CA-G.R. CR-H.C. No. 00575-MIN finding accused-appellant Rogelio Dolorido y Estrada guilty of the crime charged is AFFIRMED with MODIFICATION.  In addition to the sum of PhP 50,000 as civil indemnity, PhP 50,000 as moral damages, and PhP 25,000 as temperate damages, accused-appellant is likewise sentenced to pay the heirs of the victim the amount of PhP 30,000 as exemplary damages.  Interest at the rate of six percent (6%) per annum on the civil indemnity and moral, temperate, and exemplary damages from the finality of this decision until fully paid shall likewise be paid by accused-appellant to the heirs of Daniel Estose.

===================================

D E C I S I O N

VELASCO, JR., J.:

The Case

This is an appeal from the November 27, 2009 Decision^[22][1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00575-MIN entitled People of the Philippines v. Rogelio Dolorido y Estrada, which affirmed the September 14, 2007 Decision^[23][2] in Criminal Case No. 5027 of the Regional Trial Court (RTC), Branch 27 in Tandag, Surigao del Sur. The RTC found accused-appellant Rogelio Dolorido y Estrada guilty of murder.

The Facts

The charge against Dolorido stemmed from the following Information:

That on the 9^th day of May 2006 at around 8:30 o’clock in the morning, more or less, at Barangay Cagdapao, Municipality of Tago, Province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bolo with evident premeditation and treachery and with intent to kill, did then and there, willfully, unlawfully, and feloniously, attack, assault and hack one, DANIEL ESTOSE, causing his instantaneous death, to the damage and prejudice of the heirs of the deceased as follows:

P70,000.00      –           as life indemnity

P10,000.00      –           as moral damage

P10,000.00      –           exemplary damages

CONTRARY TO LAW.^[24][3]

On November 15, 2006, Dolorido was arraigned, and he pleaded “not guilty” to the crime charged.

During the pre-trial conference on January 18, 2007, Dolorido admitted that he killed the deceased-victim Daniel Estose but invoked self-defense. Likewise, the prosecution and the defense stipulated that the Joint Affidavit of Aniolito Avila and Adrian Avila (the Avilas) would constitute as their direct testimony, subject to cross-examination by the defense; and the Counter Affidavit of the Accused and the Affidavit of Mario Jariol would also constitute as their direct testimony, subject to cross examination by the prosecution.

During the trial, the prosecution offered the testimonies of the Avilas and Loreta Estose. On the other hand, the defense presented, as its sole witness, accused-appellant Dolorido.

The Prosecution’s Version of Facts

The Avilas were hired laborers of the victim, Estose, tasked to harvest the coconuts in the latter’s farm in Cagdapao, Tago, Surigao del Sur.^[25][4]

On May 9, 2006, while the Avilas were walking towards the coconut plantation at around 8:30 in the morning, they saw Dolorido standing near the coconut drier of Estose, appearing very angry. After some time, Dolorido proceeded to Rustica Dolorido’s coconut drier located a hundred meters away and hid behind a coconut tree.^[26][5]

Moments later, they saw Estose on his way to his own coconut drier. When Estose passed by Rustica Dolorido’s coconut drier, they saw Dolorido suddenly hack Estose twice, resulting in wounds on his arms.  When Estose tried to retreat, he fell down and it was then that Dolorido stabbed him on the left portion of his chest, which caused his death.  Dolorido suddenly left the place.

Afraid of Dolorido’s wrath, the Avilas did not immediately proceed to the scene of the crime.  It was only after 20 or so minutes that they felt it was safe to approach Estose.  When they were near, they saw Estose was already dead.^[27][6]  They then waited for Estose’s wife and the police.

Version of the Defense

Dolorido’s defense, on the other hand, consisted of the story of self-defense:

On the day of the death of the victim, Dolorido asked Estose why he was gathering Dolorido’s harvested coconuts. Estose just replied, “So, what about it?” and tried to unsheathe his bolo from its scabbard.^[28][7] Upon seeing this, Dolorido drew his own bolo and stabbed Estose.  When Estose tried to wrestle for the bolo, he sustained some wounds.  Afterwards, while Dolorido was pointing the bolo at Estose, the latter suddenly lunged at Dolorido, causing Estose to hit the bolo with his own chest which resulted in his death.^[29][8]  He denied the prosecutor’s claim that he hid behind a coconut tree and waited for Estose to come.  Thereafter, Dolorido, accompanied by one Mario Jariol, voluntarily surrendered to the Tago Police Station.

Rulings of the Trial and Appellate Courts

After trial, the RTC convicted accused Dolorido. The dispositive portion of its September 14, 2007 Decision reads:

WHEREFORE, finding accused Rogelio Dolorido y Estrada GUILTY beyond reasonable doubt of the crime of MURDER qualified by treachery, and appreciating in his favor the mitigating circumstance of voluntary surrender, without any aggravating circumstance to offset the same, the Court hereby sentences him to suffer the penalty of Reclusion Perpetua, to pay the heirs of deceased-victim Daniel Estose y Langres the sum of P50,000.00 as civil indemnity, P50,000 as moral damages and P25,000.00 as temperate damages; and to pay the cost.

x x x x

SO ORDERED.^[30][9]

On November 27, 2009, the CA affirmed in toto the judgment of the RTC.^[31][10]

The Issues

Accused-appellant assigns the following errors:

I.

The court a quo gravely erred in not appreciating self-defense interposed by accused.

II.

The court a quo gravely erred in convicting the accused-appellant of murder despite the failure of the prosecution to prove the elements of treachery.

III.

The court a quo gravely erred in awarding damages despite failure of the prosecution to present evidence to support their claim.

The Court’s Ruling

The appeal has no merit.

Self-defense is absent

In his Brief, accused-appellant argues that the trial court failed to consider the circumstance of unlawful aggression on the part of the victim. He contends that he only acted in self-defense, and this is the reason why he voluntarily surrendered to the authorities.

We do not agree.

In order for self-defense to be successfully invoked, the following essential elements must be proved: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression; and (3) lack of sufficient provocation on the part of the person resorting to self-defense.^[32][11]

A person who invokes self-defense has the burden of proof of proving all the elements.^[33][12] However, the most important among all the elements is the element of unlawful aggression. Unlawful aggression must be proved first in order for self-defense to be successfully pleaded, whether complete or incomplete. As this Court said in People v. Catbagan,^[34][13] “There can be no self-defense, whether complete or incomplete, unless the victim had committed unlawful aggression against the person who resorted to self-defense.”

In this case, we agree with the trial court that the accused-appellant failed to prove the existence of unlawful aggression. But he maintains that Estose provoked him when the latter started to unsheathe his bolo from his scabbard. Nevertheless, as aptly found by the trial court, his testimony is too incredible to be believed, viz:

Accused’s plea failed to impress the Court. To be sure, his story on how the deceased was killed is too incredible to inspire belief. According to him, it was the deceased who first unsheathed his bolo but did not succeed in his attempt to fully unsheathe it because he (Accused) hacked him. Thereafter, the deceased tried to wrest Accused’s bolo but was injured instead. If the deceased failed to unsheathe his bolo because Accused was able to hack him, how could the deceased then have attempted to dispossess the Accused of the latter’s bolo? The truth, of course, is that the Accused waylaid the deceased, as testified to by the prosecution witnesses.^[35][14] x x x

Unlawful aggression is an actual physical assault, or at least a threat to inflict real imminent injury, upon a person.^[36][15]  In case of threat, it must be offensive and strong, positively showing the wrongful intent to cause injury.^[37][16]  It “presupposes actual, sudden, unexpected or imminent danger – not merely threatening and intimidating action.”^[38][17]  It is present “only when the one attacked faces real and immediate threat to one’s life.”^[39][18]  Such is absent in the instant case.

Moreover, against the positive declarations of the prosecution witnesses who testified that accused-appellant hacked Estose twice and subsequently stabbed him without any provocation, accused-appellant’s self-serving and uncorroborated assertion deserves scant consideration.

Indeed, it is a well-settled rule that “a plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but is also extremely doubtful in itself.”^[40][19]  Moreover, “[a]bsent any showing that the prosecution witnesses were moved by improper motive to testify against the appellant, their testimonies are entitled to full faith and credit.”^[41][20]

          Therefore, absent any unlawful aggression from the victim, accused-appellant cannot successfully invoke the defense of self-defense.

Treachery is evident

In addition, accused-appellant argues that the trial court should not have appreciated treachery as a qualifying circumstance. He argues that it was impossible for the two prosecution witnesses to see the inception and the actual attack of accused-appellant to the victim because both were busy gathering coconuts.  Also, they were 50 meters away from where the actual stabbing occurred, in rolling hills with tall and short shrubs between the witnesses and the place where the actual stabbing occurred.

We disagree.

Paragraph 16 of Article 14 of the Revised Penal Code (RPC) defines treachery as the direct employment of means, methods, or forms in the execution of the crime against persons which tend directly and specially to insure its execution, without risk to the offender arising from the defense which the offended party might make. In order for treachery to be properly appreciated, two elements must be present: (1) at the time of the attack, the victim was not in a position to defend himself; and (2) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him.^[42][21]  The “essence of treachery is the sudden and unexpected attack by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself and thereby ensuring its commission without risk of himself.”^[43][22]

In the case at bar, it was clearly shown that Estose was deprived of any means to ward off the sudden and unexpected attack by accused-appellant. The evidence showed that accused-appellant hid behind a coconut tree and when Estose passed by the tree, completely unaware of any danger, accused-appellant immediately hacked him with a bolo.  Estose could only attempt to parry the blows with his bare hands and as a result, he got wounded.  Furthermore, when Estose tried to retreat, stumbling in the process, accused-appellant even took advantage of this and stabbed him resulting in his death. Evidently, the means employed by accused-appellant assured himself of no risk at all arising from the defense which the deceased might make.  What is decisive is that the attack was executed in a manner that the victim was rendered defenseless and unable to retaliate.^[44][23] Without a doubt, treachery attended the killing.

Thus, this Court finds no reason to disturb the findings of the trial court when it gave credence to the testimony of the prosecution witnesses. It is well-entrenched in our jurisprudence “x x x that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses first hand and note their demeanor, conduct and attitude under grilling examination.”^[45][24] This rule is even more binding and conclusive when affirmed by the appellate court.^[46][25]

In conclusion, all the elements of the crime of murder, as defined in paragraph 1 of Art. 248 of the RPC, were successfully proved: (1) that a person was killed; (2) that the accused killed that person; (3) that the killing was attended by treachery; and (4) that the killing is not infanticide or parricide.^[47][26]

Verily, in criminal cases such as the one on hand, the prosecution is not required to show the guilt of the accused with absolute certainty. Only moral certainty is demanded, or that degree of proof which, to an unprejudiced mind, produces conviction.^[48][27]  We find that the prosecution has discharged its burden of proving the guilt of accused-appellant for the crime of murder with moral certainty.

Award of Damages

This Court has held in People v. Beltran, Jr. that “[w]hen death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.”^[49][28]

Hence, in line with our ruling in People v. Sanchez,^[50][29] when the imposable penalty for the crime is reclusion perpetua, the damages to be imposed are: PhP 50,000 as civil indemnity, PhP 50,000 as moral damages, and PhP 30,000 as exemplary damages.  These are the amounts proper in this case because of the appreciation of the mitigating circumstance of voluntary surrender without any aggravating circumstance to offset it.

As to the award of temperate damages in the amount of PhP 25,000, such is proper “in homicide or murder cases when no evidence of burial and funeral expenses is presented in the trial court.”^[51][30]  Under Art. 2224 of the Civil Code, temperate damages may be recovered as it cannot be denied that the heirs of the victims suffered pecuniary loss although the exact amount was not proved.^[52][31]  Therefore, we sustain the award of the trial court of PhP 25,000 for temperate damages.

Finally, interest at the rate of six (6) percent should likewise be added to the damages awarded.^[53][32]

WHEREFORE, the appeal is DENIED.  The CA Decision in CA-G.R. CR-H.C. No. 00575-MIN finding accused-appellant Rogelio Dolorido y Estrada guilty of the crime charged is AFFIRMED with MODIFICATION.  In addition to the sum of PhP 50,000 as civil indemnity, PhP 50,000 as moral damages, and PhP 25,000 as temperate damages, accused-appellant is likewise sentenced to pay the heirs of the victim the amount of PhP 30,000 as exemplary damages.  Interest at the rate of six percent (6%) per annum on the civil indemnity and moral, temperate, and exemplary damages from the finality of this decision until fully paid shall likewise be paid by accused-appellant to the heirs of Daniel Estose.

SO ORDERED.

                                                          PRESBITERO J. VELASCO, JR.

                                                                   Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

TERESITA J. LEONARDO-DE CASTRO        MARIANO C. DEL CASTILLO

     Associate Justice                                            Associate Justice

JOSE PORTUGAL PEREZ

                                       Associate Justice

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                                   RENATO C. CORONA

                                                                             Chief Justice