I.

It must be alleged and proved that the presence of the three witnesses to
the physical inventory and photograph of the illegal drug seized was not
obtained due to reason/s such as:
(1) their attendance was impossible because the place of
arrest was a remote area; (2) their safety during the
inventory and photograph of the seized drugs was
threatened by an immediate retaliatory action of the
accused or any person/s acting for and in his/her
behalf; (3) the elected official themselves were involved in
the punishable acts sought to be apprehended; (4) earnest
efforts to secure the presence of a DOJ or media
representative and an elected public official within the
period required under Article 125 of the Revised Penal
Code prove futile through no fault of the arresting officers,
who face the threat of being charged with arbitrary
detention; or (5) time constraints and urgency of the anti-
drug operations, which often rely on tips of confidential
assets, prevented the law enforcers from obtaining the
presence of the required witnesses even before the
offenders could escape.[32]

II.

Petitioner Estipona, Jr. was charged with violation of Section 11 of RA 9165.

On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter into a Plea
Bargaining Agreement, praying to withdraw his not guilty plea and, instead, to enter a
plea of guilty for violation of Section 12 (NOTE: should have been Section 15?) of the same
law, with a penalty of rehabilitation in view of his being a first-time offender and the
minimal quantity of the dangerous drug seized in his possession.

Petitioner argues that Section 23 of RA 9165 which prohibits plea bargaining in all
violations of said law violates:

1. The intent of the law expressed in paragraph 3, Section 2 thereof;

2. The rule-making authority of the Supreme Court under Section 5(5), Article VIII of the
1987 Constitution; and
3. The principle of separation of powers among the three equal branches of the government.
 ISSUES:

1. Whether or not Section 23 of RA 9165 is unconstitutional as it encroached upon the power

of the Supreme Court to promulgate rules of procedure.
2. Whether or not Section 23 of RA 9165 is unconstitutional for being violative of the
Constitutional right to equal protection of the law.

HELD:

FIRST ISSUE: YES

The Supreme Court held that the power to promulgate rules of pleading, practice and
procedure is now Their exclusive domain and no longer shared with the Executive and
Legislative departments.

The Court further held that the separation of powers among the three co-equal branches
of our government has erected an impregnable wall that keeps the power to promulgate
rules of pleading, practice and procedure within the sole province of this Court. The other
branches trespass upon this prerogative if they enact laws or issue orders that effectively
repeal, alter or modify any of the procedural rules promulgated by the Court.

Viewed from this perspective, the Court had rejected previous attempts on the part of the
Congress, in the exercise of its legislative power, to amend the Rules of Court (Rules), to
wit:

1. Fabian v. Desierto -Appeal from the decision of the Office of the Ombudsman in
an administrative disciplinary case should be taken to the Court of Appeals under the
provisions of Rule 43 of the Rules instead of appeal by certiorari under Rule 45 as
provided in Section 27 of R.A. No. 6770.
2. Cathay Metal Corporation v. Laguna West Multi-Purpose Cooperative, Inc. –
The Cooperative Code provisions on notices cannot replace the rules on summons under
Rule 14 of the Rules.
3. RE: Petition for Recognition of the Exemption of the GSIS from Payment of
Legal Fees; Baguio Market Vendors
MultiPurpose Cooperative (BAMARVEMPCO) v. Hon. Judge Cabato-Cortes;
In Re: Exemption of the National Power Corporation from Payment of
Filing/Docket Fees; and Rep. of the Phils. v. Hon. Mangotara, et al. – Despite
statutory provisions, the GSIS, BAMARVEMPCO, and NPC are not exempt from the
payment of legal fees imposed by Rule 141 of the Rules.
4. Carpio-Morales v. Court of Appeals (Sixth Division) – The first paragraph
of Section 14 of R.A. No. 6770, which prohibits courts except the Supreme Court from
issuing temporary restraining order and/or writ of preliminary injunction to enjoin an
investigation conducted by the Ombudsman, is unconstitutional as it contravenes Rule
58 of the Rules.

Considering that the aforesaid laws effectively modified the Rules, this Court asserted its
discretion to amend, repeal or even establish new rules of procedure, to the exclusion of
the legislative and executive branches of government. To reiterate, the Court’s authority
to promulgate rules on pleading, practice, and procedure is exclusive and one of the
safeguards of Our institutional independence.

SECOND ISSUE: UNRESOLVED

The Supreme Court did not resolve the issue of whether Section 23 of R.A. No. 9165 is
contrary to the constitutional right to equal protection of the law in order not to preempt
any future discussion by the Court on the policy considerations behind Section 23 of R.A.
No. 9165.

Pending deliberation on whether or not to adopt the statutory provision in toto or a

qualified version thereof, the Court deemed it proper to declare as invalid the prohibition
against plea bargaining on drug cases until and unless it is made part of the rules of
procedure through an administrative circular duly issued for the purpose.

ADDITIONAL DISCUSSIONS ABOUT PLEA BARGAINING:

Plea bargaining is a rule of procedure

Fabian v. Hon. Desierto laid down the test for determining whether a rule is substantive
or procedural in nature.

In determining whether a rule prescribed by the Supreme Court, for the practice and
procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the
test is whether the rule really regulates procedure, that is, the judicial process for
enforcing rights and duties recognized by substantive law and for justly administering
remedy and redress for a disregard or infraction of them. If the rule takes away a vested
right, it is not procedural. If the rule creates a right such as the right to appeal, it may be
classified as a substantive matter; but if it operates as a means of implementing an
existing right then the rule deals merely with procedure.

In several occasions, We dismissed the argument that a procedural rule violates

substantive rights. By the same token, it is towards the provision of a simplified and
inexpensive procedure for the speedy disposition of cases in all courts that the rules on
plea bargaining was introduced. As a way of disposing criminal charges by agreement of
the parties, plea bargaining is considered to be an “important,” “essential,” “highly
desirable,” and “legitimate” component of the administration of justice.

In this jurisdiction, plea bargaining has been defined as “a process whereby the accused
and the prosecution work out a mutually satisfactory disposition of the case subject to
court approval.” There is give-and-take negotiation common in plea bargaining. The
essence of the agreement is that both the prosecution and the defense make concessions
to avoid potential losses. Properly administered, plea bargaining is to be encouraged
because the chief virtues of the system – speed, economy, and finality – can benefit the
accused, the offended party, the prosecution, and the court.
Considering the presence of mutuality of advantage, the rules on plea
bargaining neither create a right nor take away a vested right. Instead, it
operates as a means to implement an existing right by regulating the judicial process for
enforcing rights and duties recognized by substantive law and for justly administering
remedy and redress for a disregard or infraction of them.

No constitutional right to plea bargain

Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed
by trying him rather than accepting a plea of guilty; the prosecutor need not do so if he
prefers to go to trial. Under the present Rules, the acceptance of an offer to plead guilty
is not a demandable right but depends on the consent of the offended party and the
prosecutor, which is a condition precedent to a valid plea of guilty to a lesser offense that
is necessarily included in the offense charged. The reason for this is that the prosecutor
has full control of the prosecution of criminal actions; his duty is to always prosecute the
proper offense, not any lesser or graver one, based on what the evidence on hand can
sustain.

Plea bargaining, when allowed

Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point
when the prosecution already rested its case.

As regards plea bargaining during the pre-trial stage, the trial court’s exercise of
discretion should not amount to a grave abuse thereof.

If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing
or after the prosecution rested its case, the rules allow such a plea only when the
prosecution does not have sufficient evidence to establish the guilt of the crime charged.
The only basis on which the prosecutor and the court could rightfully act in allowing
change in the former plea of not guilty could be nothing more and nothing less than the
evidence on record. The ruling on the motion must disclose the strength or weakness of
the prosecution’s evidence. Absent any finding on the weight of the evidence on hand, the
judge’s acceptance of the defendant’s change of plea is improper and irregular.

III. Loose firearm refers to an unregistered firearm, an obliterated or

altered firearm, firearm which has been lost or stolen, illegally manufactured firearms,
registered firearms in the possession of an individual other than the licensee and those with
revoked licenses in accordance with the rules and regulations.

DIFFERENTIATE CRIMINAL INTENT

FROM INTENT TO POSSESS.
A distinction should be made
between criminal intent and intent to
possess. While mere possession, without
criminal intent, is sufficient to convict a
person for illegal possession of a firearm, it
must still be shown that there was animus
possidendi or an intent to possess on the
part of the accused. Such intent to possess
is, however, without regard to any other
criminal or felonious intent which the
accused may have harbored in possessing
the firearm. Criminal intent here refers to
the intention of the accused to commit an
offense with the use of an unlicensed
firearm. This is not important in convicting
a person under Presidential Decree No.
1866. Hence, in order that one may be found
guilty of a violation of the decree, it is
sufficient that the accused had no authority
or license to possess a firearm, and that he
intended to possess the same, even if such
possession was made in good faith and
without criminal intent. Elenita C. Fajardo
vs. People, G.R. No. 190889, January 10, 2011

IV.

Facts:

Julian Castillo was charged with murder and illegal possession of firearms in 2 separate informations
for having shot Rogelio Abawag using a homemade .38 caliber revolver without serial number, which
resulted to the instantaneous death of Abawag. Three live ammunitions without authority and permit
to carry them were also found. After trial, trial court convicted him with homicide and illegal
possession of firearm aggravated by homicide. Castillo now asserts that his conviction was
unwarranted as no proof was adduced by the prosecution that he was not licensed to posses the subject
firearm; they relying solely on his admission that he had to permit to posses and carry the same.

Issue:

WON the conviction for illegal possession of firearm is correct.

Held:

No.

Two (2) requisites are necessary to establish illegal possession of firearms: first, the existence of the
subject firearm, and second, the fact that the accused who owned or possessed the gun did not have
the corresponding license or permit to carry it outside his residence. The onus probandiof establishing
these elements as alleged in the Information lies with the prosecution.
The first element – the existence of the firearm – was indubitably established by the prosecution.
However, no proof was adduced by the prosecution to establish the second element of the crime. This
negative fact constitutes an essential element of the crime as mere possession, by itself, is not an
offense. The lack of a license or permit should have been proved either by the testimony or certification
of a representative of the PNP Firearms and Explosives Unit that the accused was not a licensee of the
subject firearm14 or that the type of firearm involved can be lawfully possessed only by certain military
personnel.

Hence, in the case at bar, although the appellant himself admitted thathe had no license for the
gun recovered from his possession, his admission will not relieve the prosecution of its duty to
establish beyond reasonable doubt the appellant’s lack of license or permit to possess thegun.

Note:

If homicide or murder is committed with the use of an unlicensed firearm, such use shall be
considered as a special aggravating circumstance.

Thus, Based on the facts of the case, the crime for which the appellant may be charged is homicide,
aggravated by illegal possession of firearm,the correct denomination for the crime, and not illegal
possession of firearm, aggravated by homicide