People vs. Boco

The death penalty is not automatically imposed upon illegal peddlers of dangerous drugs; the penalty of reclusion perpetua to death applies only when the amount of shabu involved is 200 grams or more, and the lesser penalty of reclusion perpetua must be applied when there are neither mitigating nor aggravating circumstances.

The appellants were charged before the Regional Trial Court (RTC) of Pasig City, Branch 163, with violation of Section 21, Article IV of Republic Act No. 6425 (RA 6425), as amended, otherwise known as the Dangerous Drugs Law. The Information dated October 24, 1996, alleged that the accused conspired to attempt to deliver, distribute, transport, or sell 234.84 grams of methamphetamine hydrochloride, locally known as "shabu," a regulated drug. The penalties under the latest amendments to the Dangerous Drugs Law, introduced by Republic Act 7659, range from prision correcional to death, depending on the quantity and kind of the prohibited or regulated drug involved and on the attendant mitigating and aggravating circumstances.

On October 22, 1996, at about 2:00 a.m., a confidential informer arrived at the District Anti-Narcotic Unit, Eastern Police District (DANU-EPD), Camp Miguel Ver, Capitol Compound, Pasig City, and talked with Capt. Rodrigo Bonifacio, who told SPO1 Emmanuel Magallanes that the informer would come back and act as poseur-buyer if the suspect was available. When the informer returned and confirmed the suspect's availability, Capt. Bonifacio formed a team to effect a buy-bust operation. The team left headquarters about 3:15 a.m. and arrived at the target area about 3:45 a.m. SPO1 Magallanes and the confidential informer proceeded to the pre-arranged meeting place at Martinez St., corner Gen. Kalentong St., Brgy. Vergara, Mandaluyong City, while the rest of the team positioned themselves in strategic places.

Soon thereafter, a Mitsubishi Lancer car arrived with two men on board — the driver and a passenger. The confidential informer recognized the passenger as "@ Caloy" (Carlos Boco) and introduced SPO1 Magallanes as a potential regular customer. After a short conversation, SPO1 Magallanes asked Boco if he had the shabu previously ordered. Boco said he had it and it would cost P20,000.00. SPO1 Magallanes showed the money but asked to examine the shabu first. Boco then asked his companion, "@ Boyet Paa" (Ronaldo Inocentes), to get the shabu. Inocentes got one heat-sealed plastic sachet from the glove compartment and handed it to Boco, who handed it to SPO1 Magallanes. After examining it and finding crystalline substance suspected to be shabu, SPO1 Magallanes made the pre-arranged signal, and his back-up rushed to the scene, introduced themselves as policemen, and arrested the suspects. SPO1 Magallanes frisked Boco and found five heat-sealed plastic bags taped around his right leg weighing about 210 grams. SPO1 Pongyan frisked Inocentes and found one heat-sealed plastic containing crystalline substance weighing about 5 grams from his right front pocket. The suspects were informed of the offense and their constitutional rights, then brought to the police headquarters. The suspected shabu was forwarded to the PNP Crime Laboratory at Camp Crame, where P/Insp. Isidro Cariño found it positive for Methamphetamine Hydrochloride (shabu).

The defense presented a different version. On October 21, 1996, before midnight, Carlos Boco, Jr. and Ronaldo Inocentes went to 246 La Torre St., Sta. Ana, Manila to pick up the former's live-in partner. They stayed about three hours. When they boarded their car and were about to leave, men approached them with guns drawn, ordered them to alight and board a van to bring them to the Eastern Police District. Francis Labutap corroborated Boco on this point. Before proceeding to the Eastern Police District, they passed by the 7-11 Restaurant at New Panaderos, Mandaluyong City, where they stopped for about half an hour. While there, the driver of the van took from Boco his jewelry consisting of three rings, one necklace, one bracelet, his wrist watch, plus 10,000.00 Yen, $100.00, and P18,500.00. Capt. Bonifacio then arrived and told them "Yari kayo," shabu was found on board your car. Boco denied having any drug. They were brought to the Eastern Police District, and about 2:00 p.m. that day, they were required to face press people, where they denied the charges. About 7:00 p.m., they were transferred to the City Jail of Mandaluyong City.

The trial court gave more credit to the prosecution evidence, reasoning that denial and alibi have less weight than positive testimonies of prosecution witnesses, and that police officers are entitled to the presumption that they performed their official duties. The trial court found a consummated unauthorized sale, reasoning that in buy-bust operations, delivery of the buy-bust money is not a prerequisite, and the contract of sale is perfected upon meeting of the minds on the object and price. The trial court also found conspiracy existed between the appellants, and ruled that the variance between the offense charged (attempted sale) and the evidence (consummated sale) did not affect liability because both sections provide the same penalty.

• Sufficiency of Evidence: Carlos Boco argued that the lower court erred in holding that the prosecution established guilt beyond reasonable doubt, and in holding that what transpired was a buy-bust operation and not a frame-up.
• Instigation vs. Entrapment: Boco argued that assuming the buy-bust operation did occur, the lower court erred in not considering it a case of instigation rather than valid entrapment.
• Conspiracy and Quantity: Boco argued that the court erred in convicting for conspiracy in committing illegal sale of seven packs of shabu weighing 234.84 grams when only one pack containing about 20 grams appeared to be the object of the sale, the rest having been merely found in possession during body search.
• Lack of Conspiracy: Ronaldo Inocentes argued that the trial court erred in concluding the existence of conspiracy on the basis of inconclusive, unclear, unsubstantiated, and uncorroborated evidence, and that his mere presence at the place of the incident was explained and unrebutted.
• Variance Between Charge and Evidence: Inocentes argued that a very clear variance existed between the crime charged (attempt to deliver, distribute, transport, or sell) and the evidence presented (consummated sale), resulting in an erroneous decision.
• Reasonable Doubt: Inocentes argued that the trial court erred in convicting on mere inferences and assumptions where even the existence of the shabu and the buy-bust money was doubtful, and that the prosecution failed to prove guilt beyond reasonable doubt.
• Presumption of Innocence: Inocentes argued that the trial court erred in not resolving all doubts, inconsistencies, and highly improbable evidence in favor of the accused, ignoring the presumption of innocence.
• Corpus Delicti: Collaborating counsel Aurora Salva Bautista argued that the trial court erred in not ruling that the prosecution failed to identify the shabu constituting the corpus delicti of the offense charged.
• Inconsistent Testimonies: Bautista argued that the trial court failed to refute the irreconcilable testimonies of prosecution witnesses SPO1 Emmanuel Magallanes and SPO1 Robert S. Pongyan in relation to their joint affidavit.
• Presumption of Regularity: Bautista argued that the trial court erred in relying mainly on the presumption of regularity of duty performed rather than on the constitutional presumption of innocence of the accused.
• Frame-up: Bautista argued that the trial court erred in not ruling that the buy-bust operation was a mere frame-up.

• Sufficiency of Evidence: The prosecution presented the testimonies of SPO1 Emmanuel Magallanes, the poseur-buyer, and SPO1 Robert Pongyan, who frisked Inocentes, to establish the illegal sale of shabu and the appellants' participation therein.
• Corpus Delicti: The prosecution presented the Request for Laboratory Examination, the Physical Sciences Report showing positive results for methamphetamine hydrochloride, and a sealed blue plastic bag containing seven plastic sachets of shabu as evidence.
• Conspiracy: The prosecution relied on the acts of both appellants — arriving together, Boco asking Inocentes to get the shabu, Inocentes retrieving it from the glove compartment and handing it to Boco, who handed it to the poseur-buyer — to establish conspiracy.

• Sufficiency of Prosecution Evidence: Whether the prosecution evidence was sufficient to establish the guilt of the accused-appellants beyond reasonable doubt.
• Conspiracy: Whether conspiracy existed between the accused-appellants.
• Validity of the Buy-Bust Operation: Whether the buy-bust operation was a valid entrapment or a mere frame-up/instigation.
• Variance Between Offense Charged and Evidence Proffered: Whether the accused-appellants could be convicted of consummated sale under Section 15 when the Information charged them with attempted sale under Section 21 of RA 6425.
• Propriety of the Penalty: Whether the trial court correctly imposed the death penalty.

• Sufficiency of Prosecution Evidence: Yes. The prosecution evidence was sufficient; the non-presentation of the marked money does not create a hiatus in the evidence so long as the sale is adequately proven and the drug itself is presented before the court. The dangerous drugs were sufficiently identified and offered as evidence, and the corpus delicti was established.
• Conspiracy: Yes. Conspiracy was established; direct proof is not essential, as it may be inferred from the acts of the accused before, during, and after the commission of the crime. Both appellants arrived together, Inocentes retrieved the shabu from the glove compartment, and packs of shabu were found on both after arrest.
• Validity of the Buy-Bust Operation: Yes. The buy-bust operation was a valid entrapment, not instigation or frame-up. The appellants failed to present sufficient credible evidence to substantiate their claims of frame-up and extortion, and instigation and frame-up cannot be present concurrently.
• Variance Between Offense Charged and Evidence Proffered: No. There was no fatal variance. Section 21 covers attempt and conspiracy, both alleged in the Information. Even assuming conspiracy was not proven, the appellants could still be convicted of attempt to sell, as a mere attempt is subsumed in the full execution of the crime.
• Propriety of the Penalty: No. The trial court erred in imposing the death penalty. The penalty for attempt or conspiracy to sell at least 200 grams of shabu is reclusion perpetua to death, but under Article 63 of the Revised Penal Code, the lesser penalty is applied when there are neither mitigating nor aggravating circumstances. The prosecution did not allege or prove any aggravating circumstance.

• Sufficiency of Prosecution Evidence: The Court reiterated the rule that non-presentation of marked money does not create a hiatus in the prosecution's evidence, so long as the sale of dangerous drugs is adequately proven and the drug itself is presented before the court. The dangerous drugs confiscated were sufficiently identified and offered as evidence; the separate marking of each of the seven sachets is not a must. Material to a prosecution for illegal sale of dangerous drugs is proof that the transaction or sale actually took place, coupled with presentation of the corpus delicti. Corpus delicti has two elements: (1) proof of the occurrence of a certain event, and (2) some person's criminal responsibility for the act. The testimonies of SPO1 Magallanes and SPO1 Pongyan complemented each other, establishing that an illegal sale actually took place and that both appellants were the authors thereof. There were no material inconsistencies, and the confidential informant's testimony was not essential for conviction, being merely corroborative and cumulative. The trial court's findings on credibility of witnesses are accorded great weight and respect absent a clear showing of overlooked facts or circumstances.

• Conspiracy: Direct proof is not essential to establish conspiracy; it may be inferred from the acts of the accused before, during, and after the commission of the crime, all of which indicate a joint purpose, concert of action, and community of interest. Both appellants arrived at the crime scene on board the same vehicle. While only Boco talked to the informant and the poseur-buyer, it was Inocentes who took out the sample shabu from the glove compartment and handed it to Magallanes. When both were frisked, packs of the regulated substance were found on their respective bodies. Their behavior and demeanor were indicative of a joint purpose — to sell the shabu. One who joins a criminal conspiracy adopts the criminal design of his co-conspirators and can no longer repudiate it after it has materialized. The act of one becomes the act of all, and each is equally guilty as co-principals.

• Validity of the Buy-Bust Operation: A buy-bust operation is a form of entrapment, accepted as a valid means of arresting violators of the Dangerous Drugs Law. In a buy-bust operation, the idea to commit the crime originates from the offender, without anybody inducing or prodding him. Its opposite is instigation, wherein the police lures the accused into committing the offense; instigation is contrary to public policy and an absolutory cause. An allegation of frame-up is a common defense viewed with disfavor, as it can be easily concocted, and the evidence must be clear and convincing. The appellants merely claimed they were victims of frame-up and extortion but failed to present sufficient credible evidence or any plausible reason or ill motive on the part of the arresting officers. The defense of instigation asserted by Boco is incompatible with frame-up; instigation and frame-up cannot be present concurrently. Absent proof of ill motive, the presumption of regularity in the performance of official duties prevails.

• Variance Between Offense Charged and Evidence Proffered: Section 21 of RA 6425 covers attempt and conspiracy, both of which were alleged in the Information, negating any surprise that could have adversely affected the appellants in their defense. The prosecution evidence convincingly established that both appellants conspired to sell the shabu. Even assuming arguendo that conspiracy was not proven, the appellants may still be convicted of attempt to sell, as a mere attempt to commit a felony is subsumed in the full execution thereof. If one has been proven to have completely carried out all acts necessary to commit the crime, he has certainly been proven to have executed the initial act required in an attempt. The trial court correctly noted that violation of Sections 15 and 21 provides the same penalty, so the appellants suffered no prejudice.

• Propriety of the Penalty: An automatic appeal of a death sentence opens the entire record for review. The penalty prescribed for an attempt or conspiracy to sell at least 200 grams of shabu without authority of law, as well as a consummated sale thereof, is reclusion perpetua to death and a fine ranging from P500,000 to P10 million. Under Article 63 (No. 2) of the Revised Penal Code, the lesser penalty is applied when there are neither mitigating nor aggravating circumstances. The prosecution did not allege or prove the attendance of any modifying, much less aggravating, circumstance to justify the imposition of the death penalty. Hence, the prison sentence imposable is only reclusion perpetua.

• Corpus Delicti — The corpus delicti has two elements: (1) proof of the occurrence of a certain event — for example, that a man has died or a building has been burned; and (2) some person's criminal responsibility for the act. In this case, the principal witnesses clearly established both elements: an illegal sale of the regulated drug actually took place, and both appellants were the authors thereof.

• Buy-Bust Operation as Valid Entrapment — A buy-bust operation is a form of entrapment accepted as a valid means of arresting violators of the Dangerous Drugs Law. In a buy-bust operation, the idea to commit the crime originates from the offender, without anybody inducing or prodding him to commit the offense. Its opposite is instigation or inducement, wherein the police or its agent lures the accused into committing the offense in order to prosecute him; instigation is contrary to public policy and considered an absolutory cause.

• Instigation vs. Frame-up — Instigation and frame-up cannot be present concurrently. In instigation, the crime is actually performed by the accused, except that the intent originates from the mind of the inducer. In frame-up, the offense is not committed by the accused; the accused is only framed or set up in a situation leading to a false accusation against him.

• Conspiracy Inferred from Acts — Direct proof is not essential to establish conspiracy; it may be inferred from the acts of the accused before, during, and after the commission of the crime, all of which indubitably point to or indicate a joint purpose, a concert of action, and a community of interest. One who joins a criminal conspiracy adopts in effect the criminal design of his co-conspirators, and he can no longer repudiate the conspiracy after it has materialized.

• Penalty Imposition under RA 7659 — The death penalty is not automatically imposed upon illegal peddlers of dangerous drugs. The penalties under the latest amendments to the Dangerous Drugs Law range from prision correcional to death, depending on the quantity and kind of the prohibited or regulated drug involved and on the attendant mitigating and aggravating circumstances. The penalty of reclusion perpetua to death applies when the amount of shabu involved is 200 grams or more. Under Article 63 (No. 2) of the Revised Penal Code, the lesser penalty is applied when there are neither mitigating nor aggravating circumstances.

• "The capital penalty is not automatically imposed upon illegal peddlers of dangerous drugs. The penalties under the latest amendments to the Dangerous Drugs Law, introduced by Republic Act 7659, range from prision correcional to death, depending on the quantity and the kind of the prohibited or regulated drug involved and on the attendant mitigating and aggravating circumstances." — This passage states the core ruling of the case: the death penalty requires proof of aggravating circumstances and depends on the quantity and kind of drug involved.

• "Material to a prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence. Corpus delicti has two elements: (1) proof of the occurrence of a certain event — for example, that a man has died or a building has been burned; and (2) some person's criminal responsibility for the act." — This passage defines the corpus delicti doctrine as applied to illegal drug sales, establishing the two-element test for conviction.

• "It is settled in our jurisprudence that direct proof is not essential to establish conspiracy, as it may be inferred from the acts of the accused before, during and after the commission of the crime, all of which indubitably point to or indicate a joint purpose, a concert of action and a community of interest." — This passage articulates the rule on proving conspiracy through circumstantial evidence of concerted action.

• "In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. Its opposite is instigation or inducement, wherein the police or its agent lures the accused into committing the offense in order to prosecute him. Instigation is deemed contrary to public policy and considered an absolutory cause." — This passage distinguishes valid entrapment (buy-bust) from invalid instigation, a frequently cited formulation in drug cases.

• People vs. Lacbanes, 270 SCRA 190, March 20, 1997 — Cited for the rule that non-presentation of marked money does not create a hiatus in the prosecution's evidence so long as the sale is adequately proven and the drug itself is presented; also cited for the presumption of regularity in the performance of official duties prevailing over self-serving claims of frame-up.
• People vs. Castro, 274 SCRA 115, June 19, 1997 — Cited for the rule that material to a prosecution for illegal sale of dangerous drugs is proof that the transaction actually took place, coupled with presentation of the corpus delicti.
• People vs. Salazar, 266 SCRA 607, January 27, 1997 — Cited for the same rule on corpus delicti and for the doctrine that testimonies of intelligence agents are not essential for conviction.
• People vs. Cabodoc, 263 SCRA 187, October 15, 1996 — Cited for the definition of corpus delicti and its two elements.
• People vs. Magallano, 266 SCRA 305, January 16, 1997 — Cited for the rule that conspiracy may be inferred from the acts of the accused before, during, and after the commission of the crime.
• People vs. Datun, 272 SCRA 280, May 7, 1997 — Cited for the rule that one who joins a criminal conspiracy adopts the criminal design of his co-conspirators and cannot repudiate it after it has materialized.
• People vs. Mahusay, 282 SCRA 80, November 18, 1997 — Cited for the rule that conviction is proper upon proof that the accused acted in concert; the act of one becomes the act of all.
• People vs. Juatan, 260 SCRA 532, August 26, 1996 — Cited for the proposition that a buy-bust operation is a valid means of arresting violators of the Dangerous Drugs Law.
• People vs. Doria, G.R. No. 125299, January 22, 1999 — Cited for the definition of buy-bust operations and for instigation being contrary to public policy and an absolutory cause.
• People vs. Yumang, 222 SCRA 119, May 17, 1993 — Cited for the definition of a buy-bust operation as one where the idea to commit the crime originates from the offender.
• People vs. Manalo, 230 SCRA 309, February 23, 1994 — Cited for the definition of instigation as a situation where the police lures the accused into committing the offense.
• People vs. Alegro, 275 SCRA 216, July 8, 1997 — Cited for the rule that allegations of frame-up are viewed with disfavor as they can be easily concocted.
• People vs. Lua, 256 SCRA 539, April 26, 1996 — Cited for the rule that evidence of frame-up must be clear and convincing, and for the great weight accorded to trial court findings on credibility.
• People vs. Clapano, 227 SCRA 598, November 8, 1993 — Cited for the rule that frame-up requires strong proof because of the presumption that public officers acted in the regular performance of their official duties.
• People vs. Atop, 286 SCRA 157, February 10, 1998 — Cited for the application of Article 63 of the Revised Penal Code, where the lesser penalty is applied when there are neither mitigating nor aggravating circumstances.

• Section 21, Article IV, RA 6425 (Dangerous Drugs Law), as amended by RA 7659 — The provision penalizing attempt and conspiracy to commit the sale, administration, delivery, distribution, and transportation of dangerous drugs. The Court held that the provision covers both attempt and conspiracy, both of which were alleged in the Information, and that the penalty for attempt or conspiracy to sell at least 200 grams of shabu is reclusion perpetua to death.
• Section 15, Article IV, RA 6425, as amended — The provision penalizing the sale, administration, delivery, distribution, and transportation of dangerous drugs. The Court noted that violation of Sections 15 and 21 provides the same penalty, so the appellants suffered no prejudice from the variance between the charge and the evidence.
• Section 20(3), RA 6425, as amended by RA 7659 — The provision prescribing the penalty of reclusion perpetua to death and a fine ranging from P500,000 to P10 million for the sale of at least 200 grams of shabu.
• Article 63 (No. 2), Revised Penal Code — The provision requiring application of the lesser penalty when there are neither mitigating nor aggravating circumstances. The Court applied this provision to reduce the penalty from death to reclusion perpetua.
• Article 6, Revised Penal Code — The provision defining attempt as the commencement of the commission of a felony by overt acts. The Court cited this to support the rule that a mere attempt is subsumed in the full execution of the crime.
• Article 1475, New Civil Code — The provision on the perfection of contracts of sale upon the meeting of minds on the object and the price. The trial court cited this to support its finding of a consummated sale.
• Section 12, Rule 126, Rules of Court — The provision on search incident to a lawful arrest. The trial court cited this to support the legality of the search subsequent to the appellants' arrest.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concurred. Romero, J., was abroad on official business.