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REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

SPECIAL FIFTH (5th) DIVISION

PEOPLE OF THE PHILIPPINES


Plaintiff-Appellee,

-versus - CA-G.R. CR-HC NO. 07534

AKIHARU KATAOKA y Jimenez,


Accused-Appellant.
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MOTION FOR RECONSIDERATION

ACCUSED-APPELLANT, by counsel, to this Honorable Court,


respectfully moves for the reconsideration of its Decision dated October
26, 2016, a copy of which was received on November 7, 2016, and in
support hereof, aver:

1. Pertinent portions of the above-mentioned Decision state:

Here the unbroken chain of custody of


the seized cocaine was established by the facts
proven during the trial. The evidence on record
showed that after the 11 sachets of cocaine was
confiscated from appellant by Agent Luwalug,
the latter immediately proceeded to their
marking and inventory. Upon leaving the buy-
bust scene, Agent Luwalug brought the
specimen to the NBI Headquarters where she
turned it over to the Forensic Chemistry
Division for laboratory examination and
safekeeping, as shown by the document signed
by the agent on duty who received it Agent D.
Asistio) (sic). Forensic Chemist Resurreccion R.
Najado, whose testimony was stipulated ny the
defense and prosecution, prepared the
Dangerous Drugs Report No. DD-11-75 and
issued a Certification stating that the specimen
submitted by Agent Luwalug tested positive for
cocaine with net weight, 7.8429 grams.
(Records, pp. 203-204, 208) These specimen
mentioned in the Report and Certification were
MOTION FOR RECONSIDERATION
People of the Philippines v. Akiharu Kataoka y Jimenez
CA- GR CR-HC No. 07534

turned over to the prosecution and presented in


court were they were identified by Aget
Luwalug as the same powdery substance
contained in 11 plastic sachets handed to her by
appellant during the buy-bust operation.1

2. Accused-appellant, with all due respect, maintains otherwise.


The prosecution failed to present an unbroken chain of custody and
detailed how it was preserved and handled by every person who gained
custody of the same.

3. First, it can be gleaned from the Request for Laboratory


Examination2 and Safekeeping that it was not Forensic Chemist
Resurreccion Bajado who received the alleged eleven (11) sachets of
shabu from Agent Luwalug, but it was Agent Asistio who then delivered
the same to Chemist Bajado. However, the prosecution failed to present
as witness Agent Asisitio. Thus, this failure of the prosecution created a
substantial gap in the chain of custody as it was not explained by the
prosecution how Agent asistio handled the alleged shabu when it was in
his custody. This gap indubitably raises doubt and question as to the
integrity of the alleged shabu. Such fact was neither stipulated by the
parties in the instant case. Thus, this uncertainty as to how the alleged
shabu was handled and preserved sets a lingering doubt as to the
integrity of the same.

4. In People v. Garry Dela Cruz,3 the Supreme Court held:

In Malilin v. People, this court explained


that the exactitude required by Section 21 goes
into the very nature of narcotics as the subject
of prosecutions under Republic Act No. 9165:

Indeed, the likelihood of tampering, loss


or mistake with respect to an exhibit is greatest
when the exhibit is small and is one that has
physical characteristics fungible in nature and
similar in form to substances familiar to people
in their daily lives. Graham vs. State positively
acknowledged this danger. In that case where a
substance later analyzed as heroinwas
handled by two police officers prior to
examination who however did not testify in
court on the condition and whereabouts of the
exhibit at the time it was in their possession
was excluded from the prosecution evidence,
1
Court of Appeals Decision dated October 26, 2016, p. 14.
2
Exhibit H of the prosecution.
3
G.R. No. 205821, October 1, 2014.
MOTION FOR RECONSIDERATION
People of the Philippines v. Akiharu Kataoka y Jimenez
CA- GR CR-HC No. 07534

the court pointing out that the white powder


seized could have been indeed heroin or it could
have been sugar or baking powder. It ruled that
unless the state can show by records or
testimony, the continuous whereabouts of
the exhibit at least between the time it came
into the possession of police officers until it
was tested in the laboratory to determine its
composition, testimony of the state as to the
laboratorys findings is inadmissible.

A unique characteristic of narcotic


substances is that they are not readily
identifiable as in fact they are subject to
scientific analysis to determine their
composition and nature. The Court cannot
reluctantly close its eyes to the likelihood, or at
least the possibility, that at any of the links in
the chain of custody over the same there could
have been tampering, alteration or substitution
of substances from other casesby accident or
otherwisein which similar evidence was
seized or in which similar evidence was
submitted for laboratory testing. Hence, in
authenticating the same, a standard more
stringent than that applied to cases involving
objects which are readily identifiable must be
applied, a more exacting standard that entails a
chain of custody of the item with sufficient
completeness if only to render it improbable
that the original item has either been exchanged
with another or been contaminated or
tampered with.

Compliance with the chain of custody


requirement provided by Section 21, therefore,
ensures the integrity of confiscated, seized,
and/or surrendered drugs and/or drug
paraphernalia in four (4) respects: first, the
nature of the substances or items seized;
second, the quantity (e.g., weight) of the
substances or items seized; third, the relation of
the substances or items seized to the incident
allegedly causing their seizure; and fourth, the
relation of the substances or items seized to the
person/s alleged to have been in possession of
or peddling them. Compliance with this
MOTION FOR RECONSIDERATION
People of the Philippines v. Akiharu Kataoka y Jimenez
CA- GR CR-HC No. 07534

requirement forecloses opportunities for


planting, contaminating, or tampering of
evidence in any manner.

By failing to establish identity of corpus


delicti, non-compliance with Section 21
indicates a failure to establish an element of the
offense of illegal sale of dangerous drugs. It
follows that this non-compliance suffices as a
ground for acquittal. As this court stated in
People v. Lorenzo:

In both illegal sale and illegal possession


of prohibited drugs, conviction cannot be
sustained if there is a persistent doubt on the
identity of the drug. The identity of the
prohibited drug must be established with moral
certainty. Apart from showing that the elements
of possession or sale are present, the fact that
the substance illegally possessed and sold in the
first place is the same substance offered in court
as exhibit must likewise be established with the
same degree of certitude as that needed to
sustain a guilty verdict.

The prosecutions sweeping


guarantees as to the identity and integrity of
seized drugs and drug paraphernalia will
not secure a conviction. Not even the
presumption of regularity in the
performance of official duties will suffice. In
fact, whatever presumption there is as to the
regularity of the manner by which officers
took and maintained custody of the seized
items is "negated." Republic Act No. 9165
requires compliance with Section 21.

Even the doing of acts which ostensibly


approximate compliance but do not actually
comply with the requirements of Section 21
does not suffice. In People v. Magat, for instance,
this court had occasion to emphasize the
inadequacy of merely marking the items
supposedly seized: "Marking of the seized drugs
alone by the law enforcers is not enough to
comply with the clear and unequivocal
MOTION FOR RECONSIDERATION
People of the Philippines v. Akiharu Kataoka y Jimenez
CA- GR CR-HC No. 07534

procedures prescribed in Section 21 of R.A. No.


9165." (emphasis supplied and citation omitted)

5. Accordingly, the Supreme Court was very clear that the


prosecution needs to present the testimony of all those who gained in
custody of the alleged shabu before it was examined in the laboratory,
failure of the same would make the laboratory findings of the forensic
chemist inadmissible. Such exactitude was for the purpose of ensuring
that no tampering was done during the transition of the alleged shabu.
Thus, in the instant case, the failure of prosecution to present the
testimony of Agent Asisitio as to how he preserved the integrity of the
alleged shabu makes the findings of the laboratory examination
conducted by Chemist Bajado inadmissible as evidence. Consequently,
being inadmissible in evidence the findings of the Chemist Bajado, this
follows that the prosecution failed to prove the corpus delicti of the
crime charged.

6. Even the stipulation entered into by the parties in the instant


case cannot help the prosecutions case, as the ruling of the Supreme
Court in People v. Sonia Bernel Nuarin4 is instructive, viz:

The stipulation on the testimony of


the forensic chemist does nothing to help fill
the gap as regards the custody and
possession of the sachets from the police
station to the crime laboratory. To recall, the
parties merely stipulated that P/Sr. Insp. Banac
received a request for laboratory examination,
together with the specimen to be examined;
that he recorded the receipt of the sachets in the
logbook and conducted a physical, chemical,
and confirmatory test on the submitted
specimen; that he found them positive for the
presence of shabu; and that he put his markings
on the sachet and placed it in an improvised
envelope before forwarding it to the evidence
custodian. Notably, the RTC held that P/Sr. Insp.
Banac "has no personal knowledge from whom
the subject specimen presented before this
court was taken (sic)." Simply put, the
stipulated testimony of the forensic chemical
officer has no bearing on the question of
whether the specimen submitted for
chemical analysis and subsequently
presented in court were the same as that
4
G.R. No. 188698, 22 July 2015
MOTION FOR RECONSIDERATION
People of the Philippines v. Akiharu Kataoka y Jimenez
CA- GR CR-HC No. 07534

seized from the appellant. (emphasis


supplied)

7. Second, the forensic chemist was not presented; hence, she was
not able to state details on how the specimen was cared for, safeguarded
and preserved while in her control to prevent alteration or replacement
while in custody. In this case, although the plastic sachet that the
forensic chemist received was heat-sealed and authenticated by the
police officer with his personal markings, the forensic chemist broke the
seal, opened the plastic sachet, and took out some substances for
chemical analysis. No evidence had been adduced to show that the
forensic chemist properly closed and resealed the plastic sachets with
adhesive and placed his own markings on the resealed plastic to
preserve the integrity of their contents until they were brought to the
court. Nor was any stipulation made to this effect. The plastic sachet
apparently showed up at the pre-trial, not bearing the forensic chemists
seal, and was brought from the crime laboratory by someone who did
not care to testify how he came in possession of the same. The evidence
did not establish the unbroken chain of custody.5

8. The Court emphasized that a "conviction must stand on the


strength of the prosecutions evidence, not on the weakness of the
defense which the accused put up. Evidence proving the guilt of the
accused must always be beyond reasonable doubt. If the evidence of
guilt falls short of this requirement, the Court will not allow the accused
to be deprived of his liberty. His acquittal should come as a matter of
course.6

9. The presumption of innocence dictates that it is for the people


to demonstrate guilt and not for the accused to establish innocence. 7 In
the instant case, the prosecution failed to discharge its burden, hence,
the accused-appellants deserve acquittal.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed


of this Honorable Court that its Decision dated October 26, 2016, be
reconsidered and after due reconsideration, a new one be rendered
ACQUITTING the accused-appellants of the crime charged.

Quezon City for Manila,


November 22, 2016.

5
People v. Catentay, G.R. No. 183101, July 6, 2010.
6
People of the Philippines v. Guzon, G.R. No. 199901, October 9, 2013.
7
People v. Limpangog, et al., G.R. No. 141438-40, February 3, 2003.
MOTION FOR RECONSIDERATION
People of the Philippines v. Akiharu Kataoka y Jimenez
CA- GR CR-HC No. 07534

Department of Justice
PUBLIC ATTORNEYS OFFICE
Special and Appealed Cases Service
5 Floor, DOJ Agencies Bldg., NIA Road
th

corner East Avenue Diliman 1104, Quezon City


Tel Nos. 9289137/9299436 loc. 111

By:

ANA LISA M. SORIANO


Public Attorney IV
Attorneys Roll No. 50954
IBP Lifetime Member No. 010152; 08-05-11
MCLE Compliance No. V-0006591; 03-03-15

MARIEL D. BAJA
Public Attorney III
Attorneys Roll No. 55365
IBP Lifetime Member No. 0101491; 08-05-11
MCLE Compliance No. V-00065671; 03-03-15

MEIZELLE G. ANTONIO
Public Attorney III
Roll No. 51488
IBP Lifetime Member No. 09515; 1-6-11
MCLE Compliance No. V-0006566; 3-3-15

- and

LEO ANTHONY M. GAMIAO


Public Attorney I
Roll No. 63544
IBP Member No. 1026098; 01-19-16
MCLE Compliance No. V-0012015; 11-12-15
MOTION FOR RECONSIDERATION
People of the Philippines v. Akiharu Kataoka y Jimenez
CA- GR CR-HC No. 07534

EXPLANATION
(Pursuant to Section 11,
Rule 13 of the 1997 New Rules of Civil Procedure)

The foregoing Motion for Reconsideration is being served by


registered mail, personal service not being practicable due to the lack of
messengers in the undersigneds office.

LEO ANTHONY M. GAMIAO

Copy furnished:

Office of the Solicitor General


134 Amorsolo St., Reg. receipt
1229 Legaspi Village, Makati City - Date: 11/22/16