Republic of the Philippines

Third Judicial Region

REGIONAL TRIAL COURT
Branch 87
Gapan City

PEOPLE OF THE PHILIPPINES,

Plaintiff,

-versus- CRIM. CASE NOS. 24323-20

to 24324-20
For: Violation of Sections 5 and 11 of
R.A. No. 9165, as amended
ROUL DE GUZMAN y Mendoza,
Accused.
x--------------------------x

MOTION FOR RECONSIDERATION

With Motion for Inhibition

COMES NOW, accused, through the undersigned counsel, most respectfully

MOVES to reconsider and set aside the Decision dated 18 February 2021 and
promulgated on the same day, and alleges that:

Timeliness of filing:

As above-stated, the assailed Decision was promulgated on 18 February

2021, copy thereof was furnished the accused, through counsel, immediately
thereafter. Pursuant to the Rules of Court, as amended, accused may seek
reconsideration of the said decision within a period of fifteen (15) days from the
date of promulgation, or until 5 March 2021. Thus, this motion is seasonably filed.

Grounds for the Motion:

With all due respect, the assailed decision is flawed. The Honorable Court
has committed the following errors:

1. It relied solely on the direct testimonies of the prosecution witnesses;

2. It ignored the assertions and admissions made by the prosecution
witnesses during their cross-examination;
3. It committed grave and serious errors in its appreciation of the evidence
presented by the prosecution; and
4. It ignored basic and well-settled jurisprudence in drug prosecutions.

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The prosecution’s evidence:

The evidence for the prosecution is summarized in the assailed decision. A

light reading thereof shows that it is substantially a repeat of the allegations in
the Pinagsamang Sinumpaang Salaysay ng Pag-Aresto at Paghahabla (Salaysay)
executed by PCpl. Kevin G. Gonzales and PSSg. Michael Culala (Officers Gonzales
and Culala) of the Gapan City Police Station who claimed to have arrested the
accused in a buy-bust operation allegedly conducted on or about 6:00 o’clock in
the evening of 7 September 2020 at Barangay Bayanihan, Gapan City. The
Decision suggests that the Salaysay has established the following facts:

1. The buy-bust operation was a police response to a tip from an unnamed

and unidentified police informant who fed the above-named police
officers with the information that accused was a drug pusher who had
previously often offered to sell illegal drugs to him. The informant
assured the police officers that he could bring the latter to the accused
for a drug sale transaction;

2. Upon the direction of Officers Gonzales and Culala, the police asset then
called the accused again informing the latter that he has a friend who
wanted to “score”. (The word “score” is not found in the Salaysay or
anywhere in the record);

3. On the basis of the informant’s tip, a buy-bust operation was

immediately set in motion and a police team was formed. Officers
Gonzales and Culala were tasked to act as poseur buyer and primary
back-up officer, respectively. The preparations included the required
documentations consisting of: (a) pre-dusted buy-bust money; (b)
transparent plastic ziplock; (c) Blank forms; (d) Service firearms; (e)
handcuffs; and (f) Cellphone with camera;

4. The team called the representatives from the Department of Justice

(DOJ), media and barangay to go along with the buy-bust team to
personally witness the operation. But the said representatives begged
off for fear of reprisal from accused. During the teams’ third call to the
representatives, the latter promised to appear after the conclusion of
the buy-bust for the purpose of witnessing the inventory. (The Salaysay
states nothing about the representatives’ fear of reprisal from the
accused. What it states is that they feared that their lives may be
placed in danger)

5. After confirming the presence of the accused at Barangay Bayanihan,

the team proceeded to the target area. Officer Gonzales positioned
himself to (sic) a spot where he can clearly see the asset and the
accused” (The Salaysay states that Officer Gonzales and the police
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 asset stood at the side of a Bamboo furniture shop along the
Maharlika highway while waiting for the arrival of the accused. Officer
Culala and the unnamed members of the buy-bust team concealed
themselves in a private vehicle that was close enough (abot-tanaw) to
be able watch the drug sale transaction.);

6. The accused was arrested at about 6:00 o’clock in the evening after he
received the marked money from Officer Gonzales and put it in his left
pocket. Then, accused took out from his right pocket a small plastic
sachet and handed the same to the police officer. At this point, Officer
Gonzales grabbed the arms (sic) of the accused and informed him that
he was being arrested for selling illegal drugs. The rest of the team
rushed to the scene. Officer Culala handcuffed the accused and recited
to him his constitutional and statutory rights;

7. Thereafter, Officer Gonzales marked the plastic sachet subject of the

sale with “KGG” and put it inside a plastic ziplock. Then, he frisked the
accused and seized the marked money from his left pocket and two (2)
other plastic sachets from his right pocket. He marked the sachets with
“KGG1” and KGG2” in the presence of the accused and thereafter placed
the same inside the plastic ziplock. He held the items all throughout.
(There is no clear indication in the Salaysay that Gonzales held the
items “all throughout”. What is stated therein is that the seized items
remained in his possession but he later on placed it on top of a small
bamboo table for the photographing and inventory.)

8. After the seized items have been marked, the team called the
representatives of the DOJ, media and barangay. Upon their arrival, the
seized items were inventoried in their presence. Thereafter, the team
proceeded to the police station. On their way to the police station,
Officer Gonzales was holding the confiscated items.

9. At about 7:30 o’clock in the evening of the same day, Officer Gonzales
turned the seized items to the duty-investigator who brought the same
and the accused to the Nueva Ecija Provincial Crime Laboratory. The
items were received by forensic chemist Emelda Roderos who
conducted the requisite laboratory examinations, the result of which
revealed that the seized plastic sachets contained Methamphetamine
Hydrochloride. Accused tested positive for ultra-violet fluorescent
powder. (The decision did not state that accused tested negative for
the presence of dangerous drugs.)

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 The defense stipulated that, if presented, Officer Culala’s testimony shall
corroborate the testimony of Officer Gonzales. Also stipulated between the
prosecution and the defense were the testimonies of PCI Roderos and police
investigator John Ace Rayo. Thereafter, the defense waived its right to present
evidence for the accused.

The Honorable Court convicted the accused of the charges and imposed the
penalties provided for under Sections 5 and 11 of RA No. 9165. The Honorable
Court held that the prosecution was able to successfully prove that the elements
of the crimes charged based on the testimony of Officer Gonzales, corroborated
by Officer Culala and other witnesses. It further held that the essential links in
order to establish an unbroken chain of custody over the seized drugs were
proven beyond reasonable doubt on the basis of the allegations in the Salaysay
which the Honorable Court so generously described as “uncontroverted and
unrebutted.”

The Honorable Court further held that the saving clause under the IRR of
RA No. 9165, as amended applied in these cases. The decision admits that the
buy-bust team deviated from the chain-of-custody rule because the marking and
seizure of the drug from the accused were done without the presence of the
three insulating witnesses who were called to, and arrived at, the buy-bust scene
only after the accused had been arrested and after the seizure of the illegal drugs
from him. The Honorable Court, however, justified the absence of the witnesses
because it was “sufficiently alleged, explained and proven during trial.” The
Honorable Court very gratuitously ruled that “earnest and genuine efforts were
made by the buy-bust team to secure their attendance, and that the buy-bust
team was able to justifiably explain the failure of the witnesses to be present.”

Finally, the Honorable Court concluded that “as long as the integrity and
evidentiary value of an illegal drug were not compromised, non-compliance with
R.A. No. 9165 and its IRR may be excused. Accused’s too much reliance on non-
compliance with the chain of custody rule cannot overcome the presumption of
regularity in the performance of official functions by the buy-bust team, especially
so that the non-observance was sufficiently explained and justified.”

Discussion:

As correctly stated in the assailed decision, the crime of illegal sale of

prohibited drugs has the following elements: (1) identity of the buyer and the
seller and its consideration; and (2) the delivery of the thing sold and the payment
therefor. In illegal sale of dangerous drugs, it is necessary that the sale transaction
actually happened and that the (procured) object is properly presented as
evidence in court and is shown to be the same drug seized from the accused. The
crime of illegal possession of dangerous drugs shall be established by the
following elements: (1) accused was in possession of dangerous drugs; (2) such

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possession was not authorized by law; and (3) the accused was freely and
consciously aware of being in possession of dangerous drugs.

Indeed, in the prosecution for illegal sale and possession of shabu, there
must be proof that these offenses were actually committed, coupled with the
presentation in court of evidence of corpus delicti.” (People vs. Gayoso, G.R. No.
206590, March 27, 2017)

It is therefore the prosecution’s burden to establish the truth of the alleged

buy-bust operation in these cases by presenting a credible buy-bust story coming
from the mouths of credible witnesses. Sadly, the assailed Decision is so focused
on the issue of the arresting officers’ compliance with the chain-of-custody rule
but sidelined the equally-important issue of whether or not the arrest of the
accused and the alleged seizure of the illegal drug from him were products of a
legitimate buy-bust operation. This was the thrust of the defense counsel’s cross-
examination of Police Officer Gonzales.

Unfortunately, it appears that the record of Officer Gonzales’ cross-

examination completely escaped the attention of the Honorable Court. Nothing is
ever mentioned about it in the assailed decision. Instead, it declared that the
prosecution’s evidence was totally uncontroverted and unrebutted.

To be sure, a cursory examination of the Salaysay reveals certain details

that create serious doubt as to whether there was indeed a legitimate buy-bust
operation against the accused.

The buy-bust operation mounted against the accused resulted from the tip
of a confidential informant who was not named in the aforesaid Salaysay. Such an
operation, according to People v. Garcia, G.R. No. 173480, February 25, 2009 is
“susceptible to police abuse, the most notorious of which is its use as a tool for
extortion,” and the possibility of that abuse was great. The susceptibility to abuse
of the operation led to the institution of several procedural safeguards by R.A. No.
9165, mainly to guide the law enforcers. Thus, the State must show a faithful
compliance with such safeguards during the prosecution of every drug-related
offense.

“We therefore stress that the “objective test” in buy-bust operations

demands that the details of the purported transaction must be clearly and
adequately shown. This must start from the initial contact between the poseur-
buyer and the pusher, the offer to purchase, the promise or payment of the
consideration until the consummation of the sale by the delivery of the illegal
drug subject of the sale. The manner by which the initial contact was made,
whether or not through an informant, the offer to purchase the drug, the
payment of the "buy-bust" money, and the delivery of the illegal drug, whether to
the informant alone or the police officer, must be the subject of strict scrutiny by
courts to insure that law-abiding citizens are not unlawfully induced to commit an

5
offense. Criminals must be caught but not at all costs. At the same time, however,
examining the conduct of the police should not disable courts into ignoring the
accused's predisposition to commit the crime. If there is overwhelming evidence
of habitual delinquency, recidivism or plain criminal proclivity, then this must also
be considered. Courts should look at all factors to determine the predisposition of
an accused to commit an offense in so far as they are relevant to determine the
validity of the defense of inducement”. (People vs. Calvelo, G.R. No. 223526,
December 6, 2017)

In these cases, the buy-bust operation was infected by lapses. In the very
first place, the manner the Salaysay was executed was suspect. In his testimony,
Officer Gonzales stated thus:

“ATTY. BAGUIO:

Q. You just identified a joint Sinumpaang Salaysay. Can you tell us who between
you and Mr. Culala personally executed the Salaysay or personally drafted the
Salaysay?
A. The police investigator, sir.

Q. So, the police investigator asked both of you questions at the same time and
typed it thru a computer?

A. Yes, sir.

Q. That was given in a duet?

A. Yes, sir.

Q. That was given in a duet? Your statements were given in a form of a duet?
A. Yes, sir.

Q. You are telling us that some of the words or most of the words written in your
salaysay were not yours or of your fellow drug operative?
A. It was ours, sir.
(Page 7, TSN dated October 29, 2020)

Clearly, Officer Gonzales was not forthright when he declared that the
words written in the Salaysay were his and that of Officer Culala. The Honorable
Court may well take judicial notice of the fact that most sworn statements
attached to criminal informations in drug cases initiated by the Gapan City Police
Station contain almost identical allegations indicating a pattern by which they are
prepared. The reason for this is simple. As in these cases, these statements may
have been prepared by the police investigator. Curiously, despite the admission of
Officer Gonzales, the Salaysay clearly makes it appear that it was prepared by him
and Culala themselves.

Nothing in the Salaysay is it stated that the buy-bust operation was

conducted after the information fed to Officers Gonzales and Culala by the
unnamed police asset was verified and confirmed to be true. During his cross-

6
examination, Gonzales attempted to cure this by claiming that they were able to
verify the truth of the informant’s report from three or four other confidential
assets. Yet, he admitted thus:

ATTY. BAGUIO:

Q. You do not know the house of the accused because you did not actually
personally validate the information given by the informant because you only
talked to certain confidential assets.
A. Yes, sir.

Q. You did not actually go to the place of residence of this accused to conduct
surveillance on him?
A. Yes, sir.

Q. The buy-bust operation was conducted solely on information given or fed to you
by your confidential assets?
A. No, sir.

Q. Why no?
A. We were together with our confidential asset when he called our target and he
let us hear the conversation that he could buy sir.

Q. Is that surveillance to you?

A. Yes, sir.
(Page 10, Ibid)

The above statements reveal that the drug sting was conducted on the
basis of raw and unverified information; a knee-jerk reaction to hearsay
information. There is no record or any proof of the alleged phone conversation
between the accused and the police informant. Assuming that such conversation
took place, the conversation was limited to the alleged readiness of the accused
to sell illegal drug to the police asset and a “friend” of his.

In addition, Officer Gonzales admitted in no uncertain terms that there was

no prior agreement between the buy-bust team and the accused as to the
quantity and price of the shabu subject of the drug sale. This, at most, renders the
buy-bust operation suspect. The absence of prior agreement between the buy-
bust team and the accused betrays the well-planned nature of a buy-bust
operation. Under the “objective test”, this is not the manner a well-planned
police operation is launched.

The prosecution admitted that the drug sting was launched against the
accused solely on the basis of the informant’s tip. No validation was conducted
before a decision was made to entrap the accused despite the fact that it was the
very first time the police station heard of his name as a suspected drug dealer.
The prosecution’s admission that the buy-bust was conducted without prior
agreement between the accused and the buy-bust team as to the price and
quantity of the shabu subject of the drug transaction creates a very serious doubt

7
on the veracity and accuracy of the buy-bust story. Admittedly, neither Officers
Gonzales nor Culala was in communication with the accused prior to the buy-bust.
The decision of the buy-bust team to use of a 500-peso marked money without a
prior assurance from the accused that he would arrive at the agreed meeting
place with a 500-peso worth of shabu must have convinced the Honorable Court
of the dubiousness of the prosecution’s buy-bust story. As a buy-bust operation is
a well-planned police operation to ensure the arrest of a drug offender, prior
communication with the accused as to the quantity and price of the shabu subject
of the sale is a matter of course. Such detail cannot be left to mere coincidence.
Its absence therefore casts a very serious doubt to the legitimacy and validity of
the alleged buy-bust operation in these cases.

Furthermore, the prosecution admits the failure of the buy-bust team to

make sure that the witnesses from the DOJ, Barangay and the media were
present at the scene of the buy-bust or nearby. Admittedly, the witnesses were
summoned to the buy-bust scene only after the accused has been arrested and
the alleged sale transaction concluded. People vs. Coronado, G.R. No, 222559,
July 6, 2018 held that while “the prosecution is excused from complying with the
requirement of Section 21 as to the presence of the accused during the initial
custody requirements, i.e., physical inventory and photographing of the seized
drugs. However, it is not excused as to the presence of the three (3) insulating
witnesses, i.e., the DOJ and media representative and elected public official. The
buy-bust team must still secure the presence of these insulating witnesses, and
the prosecution must still prove such presence, not only during the inventory and
photographing but likewise at the time of and at or near the intended place of
confiscation and seizure of the subject drugs.” (underscoring in the original)

Here, the insulating witnesses arrived at the buy-bust scene only after the
conclusion of the buy-bust. Thus, concededly, they were not in the position to tell
whether the inventoried items came from the accused.

Section 21 of RA No. 9165, as amended, “plainly requires the apprehending

team to conduct a physical inventory of the seized items and the photographing
of the same immediately after seizure and confiscation. In addition, the
inventory must be done in the presence of the accused, his counsel, or
representative, an elected public official and a representative of the DOJ or the
media, who shall be required to sign the copies of the inventory and be given a
copy thereof.

The phrase "immediately after seizure and confiscation" means that the
physical inventory and photographing of the drugs were intended by the law to
be made immediately after, or at the place of apprehension. And only if this is not
practicable, the IRR allows that the inventory and photographing could be done as
soon as the buy-bust team reaches the nearest police station or the nearest office
of the apprehending officer/team. By the same token, however, this also means
that the three required witnesses should already be physically present at the time

8
of apprehension-a requirement that can easily be complied with by the buy-bust
team considering that the buy-bust operation is, by its nature, a planned activity.
Simply put, the buy-bust team has enough time and opportunity to bring with
them said witnesses. (People vs. Tomawis, G.R. No. 228890, April 18, 2018 )
(underscoring supplied)

In these cases, the prosecution explained that the insulating witnesses

declined to witness the buy-bust operation due to fear for their lives. Surprisingly,
the Honorable Court expanded the significance of the alleged reason for the
refusal of the witnesses as “fear of reprisal from the accused” and declared it as
sufficient and reasonable explanation for the buy-bust team’s deviation from the
chain of custody rule. Clearly, however, there is absolutely no proof that the
witnesses declined to witness the photographing and marking of the seized items
which constituted as the first stage in the chain of custody of the seized items. As
to why the buy-bust team did not wait for the witnesses to arrive before marking
and photographing the alleged seized drugs is again suspect.

The law requires earnest efforts on the part of the buy-bust team to secure
the presence of the insulating witnesses during the arrest of the accused and the
seizure of the drugs from him. This much is admitted in the assailed decision.
However, the Honorable Court grievously erred in equating “earnest efforts” to
the alleged three (3) attempts to invite the witnesses who refused “for fear of
reprisal from the accused”. In so doing, the Honorable Court failed to notice that
never did the buy-bust team assure the witnesses of protection considering that
aside from Officer Gonzales, seven other policemen participated in the sting.
There is never any doubt that all of them were armed. This is not to mention the
impossibility of a mediaman to fear being a witness in a drug operation,
considering that by the nature of his job, he must always be looking for action or
for an incident worth reporting to his audience. Even more perplexing is the fact
that each and every insulating witness who was presumably called separately
three times by the buy-bust team unbelievably offered exactly the same excuse.
As held in People vs. Lim, G.R. No. 231989, September 4, 2018:

“Earnest efforts to secure the attendance of the necessary witnesses must

be proven. People vs. Ramos requires:

It is well to note that the absence of these required witnesses does not per
se render the confiscated items inadmissible. However, a justifiable reason for
such failure or a showing of any genuine and sufficient effort to secure the
required witnesses under Section 21 of RA 9165 must be adduced. In People v.
Umipang, the Court held that the prosecution must show that earnest efforts
were employed in contacting the representatives enumerated under the law for
"a sheer statement that representatives were unavailable without so much as an
explanation on whether serious attempts were employed to look for other
representatives, given the circumstances is to be regarded as a flimsy excuse."
Verily, mere statements of unavailability, absent actual serious attempts to

9
contact the required witnesses are unacceptable as justified grounds for non-
compliance. These considerations arise from the fact that police officers are
ordinarily given sufficient time - beginning from the moment they have received
the information about the activities of the accused until the time of his arrest - to
prepare for a buy-bust operation and consequently, make the necessary
arrangements beforehand knowing full well that they would have to strictly
comply with the set procedure prescribed in Section 21 of RA 9165. As such,
police officers are compelled not only to state reasons for their non-compliance,
but must in fact, also convince the Court that they exerted earnest efforts to
comply with the mandated procedure, and that under the given circumstances,
their actions were reasonable,”

To be sure, the mere three attempts of the buy-bust team to secure the
attendance of witnesses did not constitute earnest efforts. Readily accepting the
incredibly common reason for the witnesses’ refusal without proof that the buy-
bust team earnestly convinced them of their safety can, by no measure of logic,
constitute genuine and earnest efforts.

Thus, no one of the insulating witnesses was in the position to tell that the
items that were inventoried in their presence were seized from the accused, or
that there was a buy-bust operation at all. More importantly, neither did Officer
Culala or the six (6) other back-up policemen could tell that there was indeed a
drug sale transaction or that drugs were seized from the accused. This is quite
evident in the following admissions of Officer Gonzales:

ATTY. BAGUIO:

Q. What was the distance of this vehicle from the place where you dealt with the
accused?
A. He (sic) was on the other side of the road, sir.

Q. Of course, at 5:30 in the afternoon or 6 o’clock in the evening, a lot of vehicles

are (sic) passing by.
A. Yes, sir.

Q. It is therefore correct to say that your conversation with the accused was not
heard by anyone of your team members?
A. Yes, sir.

Q. The seven other members of the team were not privy to the alleged sale
between you and the accused?
A. No, sir.

Q. It is now clear that the precise time that a drug sale transaction was conducted,
it was solely between you and the accused.
A. Yes, sir.
(Pages 16-17, Ibid)

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 What is even more baffling are the following declarations of Officer
Gonzales:

ATTY. BAGUIO:

Q. Do you recall the aggregate volume of shabu that was seized from him including
the one that you bought?
A. No, sir.

Q. But do you at least remember the volume of the shabu that you bought from
him?
A. I do not recall, sir.
(Pages 18-19, Ibid)

These admissions by the alleged poseur buyer are entirely damaging to his
credibility as the prosecution’s principal witness. This, the honorable court failed
to notice because as earlier stated, the cross-examination of the witness is never
mentioned in the assailed decision, which leads the accused to believe that the
Honorable Court was so focused on the evidence presented by the prosecution,
and that in order to convict him, it conveniently ignored the lapses in the
testimony of Officer Gonzales.

Moreover, the Honorable Court’s declaration that “(a)ccused’s too much

reliance with (sic) the chain of custody rule cannot overcome the presumption of
regularity in the performance of official functions by the buy-bust team, especially
so that the non-observance was sufficiently explained and justified” is without
basis. The record of the defense counsel’s cross examination reveals that the
thrust of the questions was towards establishing the dubiousness of the alleged
buy-bust operation. In contrast, it is the Honorable Court that relied too much on
its erroneous appreciation of the chain-of-custody rule.

With regard to presumption of regularity, People v. Kamad, G.R. No.

174198, Januaryy 19, 2010, explained:

“(T)he presumption of regularity applies only when officers have shown

compliance with the standard conduct of official duty required by law." It is not a
justification for dispensing with such compliance:

Given the flagrant procedural lapses the police committed in handling the
seized shabu and the obvious evidentiary gaps in the chain of its custody, a
presumption of regularity in the performance of duties cannot be made in this
case. A presumption of regularity in the performance of official duty is made in the
context of an existing rule of law or statute authorizing the performance of an act
or duty or prescribing a procedure in the performance thereof. The presumption
applies when nothing in the record suggests that the law enforcers deviated from
the standard conduct of official duty required by law; where the official act is
irregular on its face, the presumption cannot arise. In light of the flagrant lapses

11
we noted, the lower courts were obviously wrong when they relied on the
presumption of regularity in the performance of official duty.”

Given the facts of these cases, the presumption of regularity should find no
application herein.

The Honorable Court gave too much credence to the stipulations made by
the prosecution and the defense on the testimony of PCpl. Ace John Rayo, the
police investigator who allegedly personally received the subject specimens from
Officer Gonzales, after which he turned the items over to PCI Roderos. Accused
most respectfully submits that such stipulations did not establish the chain of the
custody of the seized items in accordance with the law. People vs. Lim teaches:

“As a method of authenticating evidence, the chain of custody rule requires

that the admission of an exhibit be preceded by evidence sufficient to support a
finding that the matter in question is what the proponent claims it to be. It 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. These witnesses would then describe the precautions
taken to ensure that there had been no change in the condition of the item and
no opportunity for someone not in the chain to have possession of the same.”

Under the above definition of chain-of-custody, it is obvious enough that

the above stipulations do not suffice to establish the chain of custody of the
seized items and the Honorable Court’s reliance thereon is misplaced.

The prosecution’s evidence is not

“uncontroverted and unrebutted”

The Honorable Court gravely erred in concluding that the prosecution’s

evidence is uncontroverted and unrebutted. The cross-examination conducted by
the defense on Officer Gonzales which necessarily applied to Officer Culala
controverted and rebutted their testimonies. To controvert is to argue about or to
deny the truth. To rebut is to claim or prove that the evidence or an accusation is
false. Thus, cross-examining a witness is a way of controverting or rebutting his
assertions. To controvert or rebut does not necessary require the presentation of
defense evidence. It is enough that the defense in these cases has effectively
created a serious dent on the credibility of the testimonies of the prosecution
witnesses. This is what the defense has accomplished after its cross-examination
of officers Gonzales and Culala. After all, the burden to prove the guilt of the
accused beyond reasonable doubt rests upon the prosecution.

12
 All the foregoing facts cast serious doubt as to whether the accused was
indeed arrested in a buy-bust operation or the inventoried items were seized
from him. Thus, the prosecution failed to establish with unwavering precision that
the drug specimens offered by the prosecution as evidence of the corpus delicti
were seized from the accused, an indispensable element in the successful
prosecution of the crimes of illegal sale and possession of dangerous drugs. It
bears stressing that “in cases for Illegal Sale and/or Illegal Possession of
Dangerous Drugs under RA 9165, it is essential that the identity of the dangerous
drug be established with moral certainty, considering that the dangerous drug
itself forms an integral part of the corpus delicti of the crime. Failing to prove the
integrity of the corpus delicti renders the evidence for the State insufficient to
prove the guilt of the accused beyond reasonable doubt and, hence, warrants an
acquittal.” (People vs. Paming, G.R. No. 241091, January 14, 2019)

“Of equally grave concern to this Court is the miniscule amount of shabu
supposedly obtained from accused-appellant. This amount is not per se a badge of
innocence or a point justifying acquittal. However, the dubious facts of the seizure
and arrest, occasioned by glaring disobedience to the Comprehensive Dangerous
Drugs Act, coupled with the tendency for substitution, adulteration, and planting
of fungible evidence- which is the very reason for Section 21's strictness—impress
upon this Court the need for extreme caution in appraising an accused's supposed
guilt.” (People vs. Que, G.R. No. 212994, January 31, 2018)

The above ruling is of profound significance in these cases in light of the

fact that the three (3) plastic sachets allegedly seized from the accused contained
only 0.36 gram of shabu.

Stressing that trial courts should meticulously consider the factual

intricacies of cases involving violations of Republic Act No. 9165 and that all
details that factor into an ostensibly uncomplicated and barefaced narrative must
be scrupulously considered. People vs. Holgado, G.R. No. 207992, August 11,
2014 reminds that courts must employ heightened scrutiny, consistent with the
requirement of proof beyond reasonable doubt, in evaluating cases involving
miniscule amounts of drugs. Thus:

“It is lamentable that while our dockets are clogged with prosecutions
under Republic Act No. 9165 involving small-time drug users and retailers, we are
seriously short of prosecutions involving the proverbial “big fish.”  We are
swamped with cases involving small fry who have been arrested for miniscule
amounts.  While they are certainly a bane to our society, small retailers are but
low-lying fruits in an exceedingly vast network of drug cartels.  Both law enforcers
and prosecutors should realize that the more effective and efficient strategy is to
focus resources more on the source and true leadership of these nefarious
organizations.  Otherwise, all these executive and judicial resources expended to
attempt to convict an accused for 0.05 gram of shabu under doubtful custodial
arrangements will hardly make a dent in the overall picture.  It might in fact be
distracting our law enforcers from their more challenging task: to uproot the
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causes of this drug menace.  We stand ready to assess cases involving greater
amounts of drugs and the leadership of these cartels.”

Again, in these cases, the quantity of the shabu contained in the three (3)
small heat-sealed plastic sachets allegedly seized from the accused is 0.36 gram,
too small an amount for the accused to risk his life and liberty for a measly sum of
500 pesos. This all the more puts to doubt the prosecution’s theory that accused
was arrested in an alleged buy-bust operation that was attended by seriously
questionable and doubtful details.

Conclusion:

In sum, the prosecution’s failure to present a credible buy-bust story and to

establish the identity of the corpus delicti with unwavering exactitude translates
to its failure to prove the guilt of the accused for the crimes he is charged with.

The necessity of the Honorable Court’s

Inhibition from these cases:

With the highest respect for the Honorable Court, its seemingly deliberate
act of totally ignoring the record of the defense’s cross-examination of the
prosecution’s principal witness reveals its bias against the accused. It
demonstrates a predisposition to convict. Its ability to conduct a thorough and
fair evaluation of the evidence is obviously wanting.

All these have taken away whatever trust this accused had in the fairness
and sense of justice of the Honorable Court. With deepest apologies to the
Honorable Presiding Judge, accused most respectfully submits that he must
recuse himself from resolving this motion. In Peralta v. Judge George E. Omelio,
70 Phil. 60 (2013, the Supreme Court pronounced that:

“X x x, a presiding judge must maintain and preserve the trust and faith of
the parties litigants. He must hold himself above reproach and suspicion.

At the very first sign of lack of faith and trust to his actions, whether well
grounded or not, the Judge has no other alternative but inhibit himself
from the case. The better course for the Judge under such circumstances is
to disqualify himself. That way, he avoids being misunderstood, his
reputation for probity and objectivity is preserved. What is more important,
the ideal of impartial administration of justice is lived up to.”

The records of these cases show that the Honorable Presiding Judge had
yet to assume judicial functions when Officer Gonzales testified. He did not hear
the witness’ testimony nor did he observe the demeanor of the witness. On this
ground, accused moved that the resolution of these cases be made by the
previous acting presiding judge. Despite no objections from the public prosecutor

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and the arresting police officers whom he referred to as “private complainant or
private offended party”, the Honorable Presiding Judge denied the motion.

While accused acknowledges that the voluntary inhibition of a presiding

judge is addressed to his sound discretion, and he respects the Honorable
Presiding Judge’s exercise of discretion, the manner by which he totally ignored a
crucial portion of the testimony of the prosecution’s principal witness and other
errors shown in the assailed decision gravely bother him and lead him to
entertain serious doubt on his impartiality and fairness. Again, it appears to the
accused that the Honorable Presiding Judge was predisposed to convict him
regardless of the recorded evidence.

WHEREFORE, premises considered, accused most respectfully prays that

the Honorable Presiding Judge voluntarily INHIBITS himself from resolving the
instant Motion for Reconsideration and refer the records of these cases to the
Office of the Clerk of Court for raffle.

Accused further prays that the assailed Decision dated 18 February 2021 be
RECONSIDERED and SET ASIDE. Thereafter, a new decision be rendered
ACQUITTING him of the charges.

Other reliefs consistent with justice and equity are prayed for.

Gapan City, Nueva Ecija; February 24, 2021.

EMMANUEL T. MARCELO
Counsel for the Accused
0340 Divina Pastora Subdivision
Bayanihan, Gapan City
Mobile Phone No. 09668299671
IBP Membership No. 099012; 12/16/19
Nueva Ecija
Roll of Attorney No. 72708
MCLE Compliance: Passed the Bar Exams
on May 2019
PTR No. 8816343 issued on January 5, 2021
at Gapan City, Nueva Ecija

CELSO O. BAGUIO
Collaborating Counsel
0340 Divina Pastora Subdivision
Bayanihan, Gapan City

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 Mobile Phone No. 09453173535
IBP Membership No. 127158; 8/12/20
Roll of Attorneys No. 32489
MCLE Exemption Cert. dated 9/23/19
PTR No. 8816342; 1/5/21; Gapan City

THE HONORABLE
CLERK OF COURT
Branch 87, Regional Trial Court
Gapan City

Please calendar the foregoing Motion for Reconsideration with Motion for
Inhibition on Friday, March 5, 2021 at the court’s usual hour of session.

EMMANUEL T. MARCELO

Copy Furnished:

The Office of the City Prosecutor

Gapan City

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