REPUBLIC OF THE PHILIPPINES

NATIONAL CAPOITAL JUDICIAL REGION

REGIONAL TRIAL COURT
MANILA
BRANCH XXII
PEOPLE OF THE PHILIPPINES,
Plaintiff,
Crim. Case No.: 15-316523
For:
-versus-

Viol. of Sec. 28 (a) of

R.A. No. 10591

MARK DELA CRUZ Y BARCANCEL

@ MAKOY
Accused.
x---------------------------------------------------x

MOTION TO DISMISS
Ex Abudanti ad Cautelam
COMES NOW Accused, by the Undersigned Counsel, unto this Most
Honourable Court most respectfully states that:
1.

The Information dated 22 May 2015, charging Accused Mark Dela

Cruz Y Barcancel of violation of Section 28 (a) in relation to Sec 28 (e-1) of Repuclic

Act No. 10591 reads as follows:
INFORMATION
The Undersigned accuses MARK DELA CRUZ Y BARCANCEL @
MAKOY of Violation of Section 28 (a) in relation to Section 28 (e-1) of
Republic Act No. 10591 otherwise known as the Comprehensive Law on
Firearms and Ammunition, comitted as follows:

That on or about May 19, 2015, in the City of Manila, Philippines, the
said accused, then and there willfully, unlawfully and knowingly have in his
possession and under his custody and control one (1) .45 caliber Pistol high

People v. Mark Dela Cruz

Crim. Case No. 15-316523

cap (trademark CASPIAN) bearing serial no. 767194 marked as MDCE 5-1915 with Magazine marked as MDCE-1 5-19-15 loaded with three (3) live
ammunitions marked as MDCE-2 5-19-15 to MDCE-4 5-19-15 without first
having secured the necessary license or permit from the proper authorities.
Contrary to law.

2.

Accused DELA CRUZ was, likewise, charged for Attempted Homicide

before the Metropolitan Trial Court in the City of Manila Branch 19, the relevant
Information thereto is herein attached as ANNEX A and states as follows:
INFORMATION
The Undersigned accuses MARK DELA CRUZ Y BARCANCEL
@ MAKOY and FREDERICK BARCANCEL Y POLENDEY @
FREDDIE of the crime of Attempted Homicide, comitted as follows:
That on or about May 19, 2015, in the City of Manila,
Philippines, the said accused, conspiring and confederating
together and mutually helping each other, with intent to kill, did then
and there willfully, unlawfully and feloneously commence the
commission of the crime of homicide, directly by overt acts, to wit:
by then and there holding one VIRGILIO MORILLO Y ROSARIO
on his collar, pointing a gun on his face and pulling the trigger but
said accused did not perform all the acts of execution which should
have produced the crime of homicide by reason of some cause or
accident other than his spontaneous desistance, that is, the gun
jammed and did not fire.
Contrary to law.

3.

Accused MARK DELA CRUZ is charged under the new firearms law,

particularly Sec. 28 par. A in relation to Sec. 28 par. E (1) of Republic Act No. 10591,

People v. Mark Dela Cruz

Crim. Case No. 15-316523

otherwise known as the Comprehensive Law on Firearms and Ammunition which

reads as follows:
REPUBLICACTNO.10591

ANACTPROVIDINGFORACOMPREHENSIVELAWON
FIREARMSANDAMMUNITIONANDPROVIDINGPENALTIES
FORVIOLATIONSTHEREOF

SEC. 28. Unlawful Acquisition, or Possession of Firearms and

Ammunition. The unlawful acquisition, possession of firearms and
ammunitionshallbepenalizedasfollows:
(a)The penalty of prision mayor inits medium periodshall be
imposeduponanypersonwhoshallunlawfullyacquireorpossessa
smallarm;

(e) The penalty of one (1) degree higher than that provided in
paragraphs(a)to(c)inthissectionshallbeimposeduponanyperson
whoshallunlawfullypossessanyfirearmunderanyorcombinationof
thefollowingconditions:
(1) Loaded with ammunition or inserted with a loaded
magazine;
4.

However, by express provision of the same Law, section 29 provides:

SEC.29.UseofLooseFirearmintheCommissionofaCrime.Theuse
of a loose firearm, when inherent in the commission of a crime
punishableundertheRevisedPenalCodeorotherspeciallaws,shall

People v. Mark Dela Cruz

Crim. Case No. 15-316523

beconsideredasanaggravatingcircumstance: Provided, Thatifthe

crimecommittedwiththeuseofaloosefirearmispenalizedbythelaw
with a maximum penalty which is lower than that prescribed in the
precedingsectionforillegalpossessionoffirearm,thepenaltyforillegal
possessionoffirearmshallbeimposedinlieuofthepenaltyforthecrime
charged:Provided,further,Thatifthecrimecommittedwiththeuseofa
loosefirearmispenalizedbythelawwithamaximumpenaltywhichis
equaltothatimposedundertheprecedingsectionforillegalpossessionof
firearms,thepenaltyof prisionmayor initsminimumperiodshallbe
imposedinadditiontothepenalty forthecrimepunishable underthe
RevisedPenalCodeorotherspeciallawsofwhichhe/sheisfoundguilty.
If the violation of this Act is in furtherance of, or incident to, or in
connectionwiththecrimeofrebellionofinsurrection,orattemptedcoup
detat, suchviolationshallbeabsorbedasanelementofthecrimeof
rebellionorinsurrection,orattemptedcoupdetat.
Ifthecrimeiscommittedbythepersonwithoutusingtheloosefirearm,
theviolation ofthisActshallbeconsideredasadistinct andseparate
offense.(EmphasisSupplied)
5.

Thus, clear from the letters of Information for the crime of Attempted

Homicide, the use of the firearm, is alleged in the said Information. And said use of
the firearm shall be considered as a generic aggravating circumstance for the crime
of Attempted Homicide by express provision of Section 29 of the new Firearms Law,
Republic Act No. 10591, which uses the mandatory terminology of SHALL.
6.

And when such use of the firearm is inherently used in the commission

of a crime punishable under the Revised Penal Code, or other spacial law, the
penalty as provided under Section 29 of Republic Act. No. 10591 shall be observed.

People v. Mark Dela Cruz

Crim. Case No. 15-316523

7.

Also, it is clear that under the last paragraph of Section 29 of the new

Comprehensive Firearms Law, the only instance that violation thereof can only be
considered as a separate and distinct offense is that, when a crime is committed
without using a loose firearm.
8.

And in accordance with the Ruling of the Supreme Court in People of

the Philippines v. Guillermo Nepomuceno Jr., (G.R. No. 130800, July 29, 1999),
which involves a case wherein accused Nepomuceno was charged separately with
the crime of parricide and violation of the Presidential Decree 1866 as amended by
Republic Act. No. 8294, or the then firearms law, the Supreme Court acquited
Nepomuceno in this wise:
Under the old second paragraph of Section 1 of P.D. No. 1866, if the
killing of a person is committed, with the use of the unlicensed firearm,
the accused could be prosecuted for, and convicted of, (1) illegal
possession of firearm in an aggravated form and (2) either murder or
homicide. In People v. Quijada, 8 this Court declared:
The unequivocal intent of the second paragraph of
Section 1 of P.D. No. 1866 is to respect and preserve homicide
or murder as a distinct offense penalized under the Revised
Penal Code and to increase the penalty for illegal possession of
firearm where such a firearm is used in killing a person. Its
clear language yields no intention of the lawmaker to repeal or
modify, pro tanto, Articles 248 and 249 of the Revised Penal
Code, in such a way that if an unlicensed firearm is used in the
commission of homicide or murder, either of these crimes, as
the case may be, would only serve to aggravate the offense of
illegal possession of firearm and would not anymore be
separately punished. Indeed, the words of the subject provision
are palpably clear to exclude any suggestion that either of the

People v. Mark Dela Cruz

Crim. Case No. 15-316523

crimes of homicide and murder, as crimes mala in se under the

Revised Penal Code, is obliterated as such and reduced as a
mere aggravating circumstance in illegal possession of firearm
whenever the unlicensed firearm is used in killing a person.
The only purpose of the provision is to increase the penalty
prescribed in the first paragraph of Section 1 reclusion
perpetua in its maximum period to reclusion perpetua to death,
seemingly because the accused's manifest arrogant defiance
and contempt of the law in using an unlicensed weapon to kill
another, but never, at the same time, to absolve the accused
from any criminal liability for the death of the victim.
But, pursuant to the amendment, the use of an unlicensed firearm in the
commission of murder or homicide is treated as an aggravating
circumstance. Therefore, the illegal possession or use of the unlicensed
firearm is no longer separately punished. This Court emphatically said so
in People v. Bergante, 9 thus:
The violation of P.D. No. 1866 should have been
punished separately conformably with our ruling in People v.
Quijada. Nevertheless, fortunately for appellant Rex
Bergante, P.D. No. 1866 was recently amended by Republic
Act. No. 8294, otherwise known as "An Act Amending the
Provisions of Presidential Decree No. 1866, as Amended.
The third paragraph of Section 1 of said Act provides that
"if homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall
be considered as an aggravating circumstance." In short,
only one offense should be punished, viz., either homicide or
murder, and the use of the unlicensed firearm should only

People v. Mark Dela Cruz

Crim. Case No. 15-316523

be considered as an aggravating circumstance. Being

favorable to Rex Bergante, this provision may be given
retroactive effect pursuant to Article 22 of the Revised Penal
Code, he not being a habitual criminal.
Being clearly favorable to NEPOMUCENO, who is not a habitual
criminal, the amendment to the second paragraph of Section 1 of P.D. No.
1866 by R.A.. No. 8294 should be given retroactive effect in this case.
Considering that NEPOMUCENO was in fact convicted in the case for
parrictide, and that his conviction was affirmed in our decision of 11
November 1998 in G.R. No. 127818, with the slight modification that the
penalty should be reclusion perpetua and not "forty years of reclusion
perpetua," it follows that NEPOMUCENO should be ACQUITTED in the
case at bar. (EmphasisSupplied)
9.

And in PEOPLE OF THE PHILIPPINES vs. PO2 ALBERT ABRIOL,

MACARIO ASTELLERO, and JANUARIO DOSDOS, (G.R. No. 123137, October 17,
2001) wherein at the recommendation of the Solicitor General, The Supreme Court
held that the use of an unlicesed firearm in murder or homicide is not a separate
crime and ruled as follows:
TheOfficeoftheSolicitorGeneralrecommendsthatalthoughappellants
werechargedwithandconvictedoftwoseparateoffensesofmurderand
violationofP.D.No.1866,R.A.No.8294,whichamendedsaiddecree,
shouldbeappliedtoappellantsretroactively,citingPeoplev.Molina,292
SCRA742,779(1998)interpretingR.A.No.8294.
Weagree.WeruledinMolinathatwiththepassageofR.A.No.8294
on June 6, 1997, the use of an unlicensed firearm in murder or
homicideisnotaseparatecrime,butmerelyaspecialaggravating

People v. Mark Dela Cruz

Crim. Case No. 15-316523

circumstance. This wasrecently reiterated in Peoplev.Castillo,G.R.

Nos.13159293,February15,2000.Appellantsarethusguiltyonlyof
murderwiththespecialaggravatingcircumstanceofuseofunlicensed
firearms. The imposition of the penalty of reclusion perpetua cannot
howeverbemodifiedsincethemurdertookplacebeforetheeffectivityof
R.A.No.7659.(EmphasisSupplied)
10.

Consequently, the Supreme Court laid down the rules in cases of

violation of the the firearms law committed with other crimes in the leading case of
People of the Philippines v. Walpan Ladjaalam, (G.R Nos. 136149-51, September
19, 2000), as reiterated in the recent case of Arnel Sison v. People of the
Philippines, (G. R No. 187229, February 22, 2012)
Citing Peoplev.Jayson, theOSGarguesthattheforegoingprovision
doesnotcoverthespecificfactsofthiscase.Sinceanothercrimedirect
assault with multiple unlawful homicide was committed, appellant
cannotbeconvictedofsimpleillegal possessionoffirearms underthe
secondparagraph ofthe aforecited provision. Furthermore, since there
wasnokillinginthiscase,illegalpossessioncannotbedeemedasan
aggravating circumstance under the third paragraph of the provision.
Basedonthesepremises,theOSGconcludesthattheapplicablelawisnot
RA8294,butPD1866which,aswordedpriorthenewlaw,penalizes
simpleillegalpossessionoffirearmsevenifanothercrimeiscommittedat
thesametime.
Applying a different interpretation, the trial court posits that appellant
shouldbeconvictedofillegalpossessionoffirearms,inadditiontodirect
assaultwithmultiple attemptedhomicide.Itdidnotexplainitsruling,
however.Consideringthatitcouldnothavebeenignorantoftheproviso

People v. Mark Dela Cruz

Crim. Case No. 15-316523

inthesecondparagraph,itseemedtohaveconstruednoothercrimeas
referringonlytohomicideandmurder,inbothofwhichillegalpossession
offirearms isanaggravating circumstance. Inotherwords,ifacrime
other than murder or homicide is committed, a person may still be
convictedofillegalpossessionoffirearms.Inthiscase,theothercrime
committedwasdirectassaultwithmultipleattemptedhomicide;hence,
thetrialcourtfoundappellantguiltyofillegalpossessionoffirearms.
Wecannotaccepteitheroftheseinterpretationsbecausetheyignore
theplainlanguageofthestatute.Asimplereadingthereofshowsthat
ifanunlicensedfirearmisusedinthecommissionofanycrime,there
canbenoseparateoffenseofsimpleillegal possessionoffirearms.
Hence,iftheothercrimeismurderorhomicide,illegalpossessionof
firearmsbecomesmerelyanaggravatingcircumstance,notaseparate
offense.Sincedirectassaultwith multiple attemptedhomicidewas
committed in this case, appellant can no longer be held liable for
illegalpossessionoffirearms.
Moreover,penallawsareconstruedliberallyinfavoroftheaccused.
Inthiscase,theplainmeaningofRA8294ssimplelanguageismost
favorable to herein appellant. Verily, no other interpretation is
justified,forthelanguageofthenewlawdemonstratesthelegislative
intent to favor the accused. Accordingly, appellant cannot be
convicted oftwo separate offenses of illegal possession of firearms
and direct assault with attempted homicide. Moreover, since the
crime committed was direct assault and not homicide or murder,

People v. Mark Dela Cruz 10

Crim. Case No. 15-316523

illegal possession of firearms cannot be deemed an aggravating

circumstance.

Justasunacceptableistheinterpretationofthetrialcourt.Wefindno
justificationforlimitingthe proviso inthesecondparagraphtomurder
andhomicide.Thelawisclear:theaccusedcanbeconvictedofsimple
illegal possession of firearms, provided that no other crime was
committedbythepersonarrested. Iftheintentionofthelawinthe
second paragraph were to refer only to homicide and murder, it
shouldhaveexpresslysaidso,asitdidinthethirdparagraph.Verily,
where thelaw does notdistinguish,neithershould we. (Emphasis
Supplied)
11.

Now, as again quoting, Section 29 of the New Firearms Law, Republic

Act No. 10591, otherwise known as the Comprehensive Law on Firearms and
Ammunition provides that, the use of loose firearm shall be considered as an
aggravating circumstance when crime is committed which is punishable under the
Revised Penal Code or any other Special Law,
12.

As in this case, Accused herein MARK DELA CRUZ has been accused

in a separate Information for Attempted Homicide, a crime punishable under the

Revised Penal Code, which such use of an unlicensed firearm is duly alleged in the
said Information for Attempted Homicide.
13.

And under the last paragraph of Republic Act No. 10591 which reads,

that if the crime is committed by the person without using the loose firearm, only
then will be that, violation of this Act shall be considered as a distinct and separate
offense.

People v. Mark Dela Cruz 11

Crim. Case No. 15-316523

14.

What is at stake in all criminal cases is either the life or, as herein

present, the liberty of a human being in the person of the Accused. Hence,in case
there is a cloud within the letters of the law which places in limbo the life or liberty of
an Accused, then the justice should tilt in favor of the latter as guaranteed and
anchored on the Constitutional Provision on the Presumption of Innocence.
15.

Whereas here, Section 29 of Republic Act No. 10591 otherwise known

as the Comprehensive Firearms and Ammunitions Act is clear, that an Acccused

charged with a felony or offense using a loose firearm SHALL only be charged with
the felony or offense thus committed.
16.

Further, such use of a loose firearm SHALL aggravate, in accordance

with the penal provisions of Section 28 of the said law, the felony or offense which
the Accused committed, and this aggravating circumstance is properly alleged in the
Information charging Accused MARK DELA CRUZ in the crime of Attempted
Homicide.
17.

In this light, the Republic Act No. 10591 which accuses MARK DELA

CRUZ of the possession of a loose firearm is clear as provided in the foregoing, and
the Supreme Court is consistent that when there is no doubt in the provisions of the
law, there is no room other than its plain interpretation.
18.

Verily, as to be consistent with the foregoing laws and prevailing

jurisprudence, a dismissal of the present case would be proper as submitted before

the wisdom of this Honourable Court.

PRAYE R

WHEREFORE, in view of the foregoing, it is most respectfully prayed of

this Most Honourable Court that the present case be DISMISSED.
Praying, further, for such other reliefs in law and equity.
Manila for Quezon City, 24 September 2015.

People v. Mark Dela Cruz 12

Crim. Case No. 15-316523

The Law Firm of:

DAVID B. AGONCILLO
Counsel for Plaintiffs-Appellants
Office Address
No. 1425-A Pampanga Street
Tondo, Manila
Roll No. 25604
IBP Receipt No. 949476
12 November 2015 Manila 4
MCLE Cert. of Comp. No. 111-0005754
PTR VC-3371533 12 January 2015
Email address: atty_agoncillo4542@yahoo.com
Mobile No. 0919-279-7071
NOTICE OF HEARING
The Branch Clerk of Court
Regional Trial Court
Manila Br. 12
Assistant City Prosecutor
City of Manila
Greetings!
Please take notice that the Undersigned Counsel for the Accused will
submit the foregoing Motion to Dismiss Ex Abudanti Ad Cautelam for the approval of
the same by this Honourable Court on __ October 2015 at 8:30 (A.M.) in the
morning thereof.
DAVID B. AGONCILLO
EXPLANATION
Copy of this pleading was served through registered mail upon Assistant
City Prosecutor of Manila, for lack of personnel to effect personal service thereof.

DAVID B. AGONCILLO
Copy Furnished:
Assistant City Prosecutor

People v. Mark Dela Cruz 13

Crim. Case No. 15-316523

City of Manila
2nd Floor Manila City Hall