REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

FIRST JUDICIAL REGION
BRANCH 44
San Fernando City, La Union

PEOPLE OF THE PHILIPPINES,

Plaintiff, Crim. Case No. 11111
-versus- for

HONESTO DIMAGIBA y WAYAN Violation of Section 5

Article II of RA 9165 (Sale of
Dangerous Drugs)
Brgy. Sagayad, San Fernando City, La Union
Accused.

x-------------------------------------------x

LEGAL MEMORANDUM

COMES NOW THE ACCUSED in the above – entitled case, by

the undersigned counsel, unto this Honorable Court, most
respectfully submits the following as his memorandum.

THE PARTIES

1. Plaintiff is the People of the Philippines

2. Accused is Honesto Dimagiba y Wayan alias Batas, 45 years

old, single, jobless and a resident of Purok 4, Brgy Sagayad,
City of San Fernando, La Union.

I. PROCEDURAL BACKGROUND

1. On June 27, 2016, information was filed. Information was

supported by the criminal complaint of the police officers.

2. On July 5, 2016, the Court ordered the commitment of the

accused.

3. On September 6, 2016, the accused was arraigned and

pleaded not guilty.

4. On September 26, 2016, the Preliminary Conference was

completed and terminated.
 5. On October 25, 2016, the Pre-trial Conference was completed
and terminated. Pre-trial order was issued.

6. On February 28, 2017, intended Prosecution witness PSI Vice

Ganda failed to appear. Reset.

7. On March 28, 2017, PO3 James Flores (the Evidence

Custodian) completed his testimony via stipulations.

8. On May 9, 2017, intended Prosecution witness PSI Vice

Ganda failed to appear. Reset.

9. On June 20, 2017, PSI Vice Ganda (the Forensic Chemist)

completed his testimony via stipulations.

10. On September 5, 2017, PO2 Julia Munar testified on direct

examination.

11. On October 3, 2017, PO2 Munar retured to the witness stand

and testified on cross examination. Her testimony was
completed and terminated. The testimony of PO1 Randon
Orfano, Philip Caneda as well as PO3 John Baniaga were
completed via stipulation. The same were terminated. The
Prosecution formally offered the evidence which were
objected to by the defense,

12. On October 24, 2017, Honesto Dimagiba took the witness

stand and completed his testimony. Defense rested as no
other witnesses will be presented.

II. FACTUAL BACKGROUND

As culled from the testimonies of prosecution witnesses, Police

Officer 2 Julia Munar (PO2 Munar), the poseur-buyer in the buy-bust
operation, Police Officer 1 Randon Orfano (PO1 Orfano), the
immediate back –up of PO2 Munar during the operation, and Police
Senior Inspector Vice Ganda (PSI Ganda), the forensic chemical
officer, it appears that on June 26, 2016, while PO2 Munar was on
duty, a confidential informant reported that Honesto Dimagiba is
involved in illegal drug activity and he is a resident of Brgy. Sagayad
of San Fernando City, La Union. Upon receipt of the report, PO2
Munar made verification in the Order of Battle that Honesto
Dimagiba is one of the drug personalities in Brgy. Sagayad. PO2
Munar then advised the informant to call Honesto to inform him that
she has found a buyer of shabu. PO2 Munar ordered Php 1000 worth
of shabu and the place of the transaction will be at Y Inn Foods. The
team leader, PSI Suyat, formed a team that will undertake the buy-
bust information.

After the discussion about the buy-bust operation, the team

proceeded to Y Inn Foods. The informant introduced PO2 Munar to
Honesto Dimagiba as the buyer of shabu. Dimagiba handed PO2
Munar one heat-sealed transparent plastic sachet with white
crystalline substance. After examining the contents, PO2 Munar
handed him the buy-bust money. Dimagiba accepted it and put it on
his pocket. PO2 Munar executed the pre-arranged signal wherein she
opened her umbrella which means that the sale has been
consummated. The other members rushed to the area and assisted
PO2 Munar in arresting Dimagiba for selling illegal drugs. PO2
Munar conducted a body search on Dimagiba wherein she recovered
the buy-bust money with PO2 Munar’s initials and a cellphone was
recovered.

The team leader coordinated with the witnesses, the barangay official
and the representative of the media. When the two witnesses arrived,
PO2 Munar put her markings in the sold item and recovered
cellphone. After the two witnesses signed the inventory, the team
proceeded to the City Health office for the medical of Dimagiba.
Thereafter, they proceeded to the police station to submit the item to
the Crime Laboratory Office. The result is positive for
methamphetamine hydrochloride otherwise known as shabu.

III. ISSUE OF THE CASE

Whether Honesto Dimagiba is guilty for violation of Section 5

Article II of R.A. No. 9165.

IV. ARGUMENTS AND DISCUSSION

The prosecution failed to establish the identity of the corpus delicti

due to the defects in the chain of custody.

a.) Non-compliance with the

three witness rule.

The requisites that must be satisfied to sustain convictions for illegal

sale of dangerous drugs under Section 5 of the Comprehensive
Dangerous Drugs Act are settled.

In actions involving the illegal sale of dangerous drugs, the following

elements must first be established: (1) proof that the transaction or
sale took place and (2) the presentation in court of the corpus delicti
or the illicit drug as evidence.
On the element of corpus delicti, Section 21 of the Comprehensive
Dangerous Drugs Act, as amended by Republic Act No. 10640, spells
out the requirements for the custody and disposition of confiscated,
seized, and/or surrendered drugs and/or drug paraphernalia.
Section 21(1) to (3) stipulate the requirements concerning custody
prior to the filing of a criminal case:

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. - The
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;

(2) Within twenty-four (24) hours upon confiscation/seizure of

dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment, the same
shall be submitted to the PDEA Forensic Laboratory for a qualitative
and quantitative examination;

(3) A certification of the forensic laboratory examination results,

which shall be done by the forensic laboratory examiner, shall be
issued immediately upon the receipt of the subject item/s: Provided,
That when the volume of dangerous drugs, plant sources of
dangerous drugs, and controlled precursors and essential chemicals
does not allow the completion of testing within the time frame, a
partial laboratory examination report shall be provisionally issued
stating therein the quantities of dangerous drugs still to be examined
by the forensic laboratory: Provided, however, That a final
certification shall be issued immediately upon completion of the said
examination and certification.

In People v. Nandi, the four (4) links in the chain of custody are
established:
Thus, the following links should be established in the chain of
custody of the confiscated item: first, the seizure and marking, if
practicable, of the illegal drug recovered from the accused by the
apprehending officer; second, the turnover of the illegal drug seized
by the apprehending officer to the investigating officer; third, the
turnover by the investigating officer of the illegal drug to the forensic
chemist for laboratory examination; and fourth, the turnover and
submission of the marked illegal drug seized from the forensic
chemist to the court.

When PO2 Munar testified in court, she said:

Q After confiscating the item, what did you do next?

A Our team leader coordinated with the witnesses, the barangay

official and the representative of the media, ma’am.

Q Did these witnesses arrive at the place of transaction?

A Yes Ma’am.

People v. Morales explained that "failure to comply with Paragraph

1, Section 21, Article II of RA 9165 implies a concomitant failure on
the part of the prosecution to establish the identity of the corpus
delicti." It "produces doubts as to the origins of the seized
paraphernalia."

b.) The first link in the chain

of custody is weak

PO3 James Flores, who was assigned as the custodian of the seized
items, and PSI Vice Ganda, the Forensic chemist were never
presented by the prosecution to elucidate on the following important
matters: the significant break from the inventory to the actual
marking of the items and the identity and signature of the person
who held temporary custody of seized items. PSI Vice Ganda also
failed to prove that she has personal knowledge of the source of
specimen. Also, she did not see the evidence custodian placed
markings on the sealed envelope.

People v. Arposople is enlightening regarding the admissibility of the

corpus delicti, to wit:

To stress, in order that the seized items may be admissible, the

prosecution must show by records or testimony, the continuous
whereabouts of the exhibit at least between the times it came into the
possession of the police officers until it was tested in the laboratory to
determine its composition up to the time it was offered in
evidence. In Mallillin v. People, the court reiterated a more definite on
qualifying the method of authenticating evidence through marking,
viz: "(I)t would include testimony about every link in the chain,
from the moment the item was picked up to the time it is offered
into evidence; in such a way that every person who touched the
exhibit would describe how and from whom it was received, where
it was and what happened to it while in the witness' possession;
the condition in which it was received and the condition in which
it was delivered to the next link in the chain."

Certainly revealing from these findings was the consistent

noncompliance by the team with the requirements of Sec. 21 of R.A.
No. 9165. It must be remembered that this provision of the law was
laid down by Congress as a safety precaution against potential
abuses by law enforcement agents who might fail to appreciate the
gravity of the penalties faced by those suspected to be involved in the
sale, use or possession of illegal drugs.

The first link, it is emphasized, primarily deals on the preservation of

the identity and integrity of the confiscated items, the burden of
which lies with the prosecution. Absent therefore of the certainty that
the identity of the corpus delicti is preserved, it casts doubt upon the
guilt of the accused.

c.) The presumption of regularity in

the performance of duty cannot prevail over
the presumption of innocence of the accused.

Even the presumption as to regularity in the performance by police

officers of their official duties easily disappeared before it could find
significance in these cases. Continuing accretions of case law reiterate
that a high premium is accorded the presumption of innocence over
the presumption of regularity in the performance of official duty, viz:

The Court has usually presumed the regularity of performance of

their official duties in favor of the members of buy-bust teams
enforcing our laws against the illegal sale of dangerous drugs. Such
presumption is based on three fundamental reasons, namely: first,
innocence, and not wrongdoing, is to be presumed; second, an
official oath will not be violated; and, third, a republican form of
government cannot survive long unless a limit is placed upon
controversies and certain trust and confidence reposed in each
governmental department or agent by every other such department
or agent, at least to the extent of such presumption. But the
presumption is rebuttable by affirmative evidence of irregularity or
of any failure to perform a duty. Judicial reliance on the presumption
despite any hint of irregularity in the procedures undertaken by the
agents of the law will thus be fundamentally unsound because such
hint is itself affirmative proof of irregularity.
The presumption of regularity of performance of official duty stands
only when no reason exists in the records by which to doubt the
regularity of the performance of official duty. And even in that
instance the presumption of regularity will not be stronger than the
presumption of innocence in favor of the accused. Otherwise, a mere
rule of evidence will defeat the constitutionally enshrined right to be
presumed innocent. Trial courts are instructed to apply this
differentiation, and to always bear in mind the following reminder
issued in People v. Catalan:

x x x We remind the lower courts that the presumption of regularity

in the performance of duty could not prevail over the stronger
presumption of innocence favoring the accused. Otherwise, the
constitutional guarantee of the accused being presumed innocent
would be held subordinate to a mere rule of evidence allocating the
burden of evidence. Where, like here, the proof adduced against the
accused has not even overcome the presumption of innocence, the
presumption of regularity in the performance of duty could not be a
factor to adjudge the accused guilty of the crime charged.

Moreover, the regularity of the performance of their duty could not

be properly presumed in favor of the policemen because the records
were replete with indicia of their serious lapses. As a rule, a
presumed fact like the regularity of performance by a police officer
must be inferred only from an established basic fact, not plucked out
from thin air. To say it differently, it is the established basic fact that
triggers the presumed fact of regular performance. Where there is
any hint of irregularity committed by the police officers in arresting
the accused and thereafter, several of which we have earlier noted,
there can be no presumption of regularity of performance in their
favor.

d.) The guilt of the accused

was not proven beyond reasonable
doubt.

It is clear that the non-compliance of the police officers to section 21

of R.A. No 9165, especially to the 3 witness rule and how the seized
items were handled generates serious doubt on the integrity and
evidentiary value of the items. Under the principle that penal laws
are strictly construed against the government, stringent compliance
with Sec. 21, R.A. No. 9165 and its IRR is fully justified. The breaches
in the procedure provided in Sec. 21, R.A. No. 9165 committed by the
police officers, and left unacknowledged and unexplained by the
State, militate against a finding of guilt beyond reasonable doubt
against the appellants as the integrity and evidentiary value of
the corpus delicti had been compromised.
 V. PRAYER

WHEREFORE, premise considered, it respectfully prayed for that

this Honorable Court the accused, Honesto Dimagiba, be
ACQUITTED of the crime charged for failure of the prosecution to
prove his guilt beyond reasonable doubt.

Other just and equitable relief under the foregoing are likewise being
prayed for.

Respectfully submitted.

San Fernando City, La union, Philippines, October 30, 2017.

ATTY. ROSSETTE ANASARIO

Counsel for the accused
IBP Lifetime No. 67891; 5/10/2005
PTR No. 44568; 1/10/2011
Roll of Attorney No. 2005-001023
MCLE Compliance No. III – 000899