SECOND DIVISION

[G.R. No. 162052. January 13, 2005.]

OF

THE

PHILIPPINES,

DECISION
CALLEJO, SR., J :
p

This is a petition for review on certiorari of the Decision 1 of the Court of Appeals
(CA) in CA-G.R. CR No. 22289 arming with modication the Decision 2 of the
Regional Trial Court of Calamba, Laguna, Branch 36, convicting the accused therein
of violation of Section 21(b), Article IV in relation to Section 29, Article IV of
Republic Act No. 6425, as amended.
The records show that Alvin Jose and Sonny Zarraga were charged with the said
crime in an Information, the accusatory portion of which reads:
That on or about November 14, 1995, in the municipality of Calamba,
Province of Laguna, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one
another, not being licensed or authorized by law, did then and there willfully,
unlawfully and
feloniously sell and
deliver
to
other
person
METHAMPHETAMINE HYDROCHLORIDE (or shabu) weighing 98.40 grams, a
regulated drug, and in violation of the aforestated law.
cCDAHE

CONTRARY TO LAW.

The accused, assisted by counsel, pleaded not guilty to the charge.

2005cdjur

As culled by the trial court, the evidence of the prosecution established the
following:
. . . [O]n November 14, 1995, P/Supt. Joseph R. Castro of the Fourth
Regional Narcotics Unit received an information from an unnamed
informant. Said unnamed informant was introduced to him by former
Narcom P/Senior Inspector Recomono. The information was that a big time
group of drug pushers from Greenhills will deliver 100 grams of shabu at
Chowking Restaurant located at Brgy. Real, Calamba, Laguna.
Acting on such report, SPO1 Bonifacio Guevarra was assigned to act as the
poseur-buyer. SPO2 William Manglo and SPO2 Wilfredo Luna were the other
members of the team. SPO1 Guevarra was provided with marked money
consisting of a P1,000.00 bill on top of a bundle of make-believe "money
bills" supposedly amounting to P100,000.00. P/Supt. Joseph R. Castro, SPO2

William Manglo and Wilfredo Luna went to the place on a Mitsubishi Lancer
while SPO1 Guevarra and the informant boarded an L-300 van. They arrived
at the Chowking Restaurant at about 11:00 in the morning. They positioned
their cars at the parking area where they had a commanding view of people
going in and out (TSN, October 3, 1996, pp. 2-8 and TSN, July 11, 1996, pp.
4-7).
It was about 4 o'clock in the afternoon when a Toyota Corolla with Plate No.
UBV-389 arrived. Sonny Zarraga was the driver with Alvin Jose. The
unnamed informant approached and talked to Sonny Zarraga. Then, the
informant called SPO1 Bonifacio Guevarra and informed the latter that
Sonny Zarraga had with him 100 grams of shabu. SPO1 Bonifacio Guevarra
oered to buy the shabu. Sonny Zarraga asked SPO1 Bonifacio Guevarra if
he had the money to buy 100 grams of shabu. Guevarra responded in the
armative. He showed the aforecited bundle of "money bills." Sonny
Zarraga then asked Alvin Jose to bring out the shabu and handover (sic) to
Bonifacio Guevarra. SPO1 Bonifacio Guevarra, in turn, handed the bundle of
"money bills."
DTcACa

Guevarra scratched his head, the pre-arranged signal to signify that the
transaction was consummated (TSN, July 30, 1996, pp. 3-8). Immediately
thereafter, William Manglo and Wilfredo Luna approached and introduced
themselves as Narcom Operatives. They arrested Sonny Zarraga and Alvin
Jose. The buy-bust bundle of "money bills" and the shabu were recovered.
The two were brought to Camp Vicente Lim for investigation. Edgar Groyon
conducted the investigation. The shabu was brought to the PNP Crime
Laboratory for examination (TSN, July 30, 1996, pp. 9-10 and TSN, October
3, 1996, pp. 9-13). P/Senior Inspector Mary Jean Geronimo examined the
shabu. She reported and testied that the specimen, indeed, was a second
or low grade methamphetamine hydrochloride (TSN, July 30, 1996, pp. 3136). 4

On the other hand, the accused therein were able to establish the following facts:
Sonny Zarraga and Alvin Jose claimed that, on November 13, 1995, they
were at SM Mega Mall (sic), Mandaluyong, Metro Manila, to change money.
Suddenly, a person with a hand bag appeared and ordered them to
handcu themselves. They were later able to identify three of these people
as Police Supt. Joseph Roxas Castro, SPO3 Noel Seno and a certain Corpuz.
They were all in civilian clothes.
They proceeded to where Sonny Zarraga's car was parked. Sonny Zarraga
was forced to board another car while another person drove Sonny
Zarraga's car with Alvin Jose as passenger. They drove towards Greenhills.
They were eventually blindfolded. On the way to Greenhills, one of the men
opened the gloves compartment of Sonny Zarraga's car. One of the men
saw a substance inside the said compartment. He tasted it. Said person
asked Sonny Zarraga if he could come up with P1.5 Million peso (sic). Col.
Castro even showed the picture of Sonny Zarraga's mother-in-law who was
supposed to be a rich drug pusher.

They ended up inside a room with a lavatory. While inside the said room,
Sonny Zarraga's cellular phone rung. It was a call from Sonny Zarraga's
wife. Col. Castro talked to Pinky Zarraga and asked her if she could pay P1.5
Million as ransom for the release of Sonny Zarraga. Sonny Zarraga instead
oered to withdraw money from the bank in the amount of P75,000.00. The
agreement was that in the bank, Pinky Zarraga would withdraw the money
and deliver it to Col. Castro in exchange for Sonny Zarraga's release. The
agreement did not materialize. Col. Castro and Pinky Zarraga met inside the
bank but Pinky Zarraga refused to withdraw the money as Sonny Zarraga
was nowhere to be seen. There was a commotion inside the bank which
prompted the bank manager to call the police.
SECAHa

Col. Castro left the bank in a hurry, passed by for Alvin Jose who was left at
the room and brought them to Camp Vicente Lim. There, they were
investigated.

The defense claimed that SPO3 Noel Seno got Sonny Zarraga's jewelry, P85,000.00
in cash and Sonny Zarraga's car spare tire, jack and accessories. Noel Seno was even
able to withdraw the P2,000.00 using Sonny Zarraga's ATM card. 5
On June 10, 1998, the trial court rendered judgment convicting both accused of the
crime charged and sentencing each of them to an indeterminate penalty. The fallo
of the decision reads:
WHEREFORE, this Court nds both the accused Sonny Zarraga and Alvin
Jose guilty beyond reasonable doubt, for violation of R.A. 6425, as amended,
and is hereby sentenced to suer the penalty of imprisonment of, after
applying the Indeterminate Sentence Law, six (6) years and one (1) day to
ten (10) years.
Both accused are hereby ordered to pay the ne of P2 million each and to
pay the cost of suit.
In the service of sentence, the preventive imprisonment undergone both by
the accused shall be credited in their favor.
Atty. Christopher R. Serrano, Branch Clerk of Court, is hereby ordered to
deliver and surrender the conscated Methamphetamine Hydrochloride to
the Dangerous Drugs Board.
SO ORDERED.

On appeal to the CA, the accused-appellants averred that the trial court erred as
follows:
HCITcA

I
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL CREDENCE TO THE
EVIDENCE PRESENTED BY THE PROSECUTION.
II

THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THAT THE MERE
PRESENTATION OF THE SHABU IN COURT IS NOT SUFFICIENT TO FIND,
WITH ABSOLUTE CERTAINTY, THAT THE APPELLANTS COMMITTED THE
CRIME OF SELLING PROHIBITED DRUGS, ESPECIALLY WHEN THE IDENTITY
OF THE DRUG WAS NOT PARTICULARLY SET OUT IN THE TESTIMONY OF
THE PROSECUTION WITNESSES.
III
EVEN GRANTING THAT THE TRIAL COURT CORRECTLY FOUND THE
APPELLANTS GUILTY OF THE CRIME CHARGED AGAINST THEM:
(a)

THE TRIAL COURT DID NOT IMPOSE THE PROPER PENALTY

(b)

EACH OF THE APPELLANTS CANNOT BE MADE TO PAY A FINE

The CA rendered judgment arming the decision appealed from with modication.
The appellate court reduced the penalty imposed on appellant Alvin Jose, on its
nding that he was only thirteen (13) years old when he committed the crime;
hence, he was entitled to the privileged mitigating circumstance of minority and to
a reduction of the penalty by two degrees. The appellant led a motion for
reconsideration, alleging that since the Information failed to allege that he acted
with discernment when the crime was committed and that the prosecution failed to
prove the same, he should be acquitted. The appellate court denied the motion.
STECDc

Appellant Jose, now the petitioner, led his petition for review on certiorari, alleging
that
THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING PETITIONER
DESPITE (1) THE FAILURE OF THE PROSECUTION TO PROVE BEYOND
REASONABLE DOUBT THAT PETITIONER, WHO WAS ONLY 13 YEARS OLD
WHEN THE CRIME WAS ALLEGEDLY COMMITTED BY HIM IN CONSPIRACY
WITH CO-ACCUSED SONNY ZARRAGA, ACTED WITH DISCERNMENT, AND
(2) THE ABSENCE OF A DECLARATION BY THE TRIAL COURT THAT
PETITIONER SO ACTED WITH DISCERNMENT, PURSUANT TO THE
APPLICABLE PROVISIONS OF THE REVISED PENAL CODE AND THE
ESTABLISHED JURISPRUDENCE. 8

The petitioner asserts that, under paragraph 3, Article 12 of the Revised Penal Code,
a minor over nine (9) and under fteen (15) years of age at the time of the
commission of the crime is exempt from criminal liability unless he acted with
discernment, in which case he shall be proceeded against in accordance with Article
192 of Presidential Decree (P.D.) No. 603, as amended by P.D. No. 1179, as provided
for in Article 68 of the Revised Penal Code. He avers that the prosecution was
burdened to allege in the Information and prove beyond reasonable doubt that he
acted with discernment, but that the prosecution failed to do so. The petitioner
insists that the court is mandated to make a nding that he acted with discernment

under paragraph 1, Article 68 of the Revised Penal Code and since the CA made no
such finding, he is entitled to an acquittal.
For its part, the Oce of the Solicitor General (OSG) asserts that the allegation in
the Information that the petitioner and his co-accused conspired and confederated
to sell the shabu subject of the Information suciently avers that the petitioner
acted with discernment; hence, there was no need for the public prosecutor to
allege specically in the Information that the petitioner so acted. It contends that it
is not necessary for the trial and appellate courts to make an express nding that
the petitioner acted with discernment. It is enough that the very acts of the
petitioner show that he acted knowingly and was suciently possessed with
judgment to know that the acts he committed were wrong.
The petition is meritorious.
Under Article 12(3) of the Revised Penal Code, a minor over nine years of age and
under fteen is exempt from criminal liability if charged with a felony. The law
applies even if such minor is charged with a crime dened and penalized by a special
penal law. In such case, it is the burden of the minor to prove his age in order for
him to be exempt from criminal liability. The reason for the exemption is that a
minor of such age is presumed lacking the mental element of a crime the
capacity to know what is wrong as distinguished from what is right or to determine
the morality of human acts; wrong in the sense in which the term is used in moral
wrong. 9 However, such presumption is rebuttable. 10 For a minor at such an age to
be criminally liable, the prosecution is burdened 11 to prove beyond reasonable
doubt, by direct or circumstantial evidence, that he acted with discernment,
meaning that he knew what he was doing and that it was wrong. 12 Such
circumstantial evidence may include the utterances of the minor; his overt acts
before, during and after the commission of the crime relative thereto; the nature of
the weapon used in the commission of the crime; his attempt to silence a witness;
his disposal of evidence or his hiding the corpus delicti.
HcDSaT

In the present case, the prosecution failed to prove beyond reasonable doubt that
the petitioner, who was thirteen (13) years of age when the crime charged was
committed, acted with discernment relative to the sale of shabu to the poseurbuyer. The only evidence of the prosecution against the petitioner is that he was in
a car with his cousin, co-accused Sonny Zarraga, when the latter inquired from the
poseur-buyer, SPO1 Bonifacio Guevarra, if he could aord to buy shabu. SPO1
Guevarra replied in the armative, after which the accused Zarraga called the
petitioner to bring out and hand over the shabu wrapped in plastic and white soft
paper. The petitioner handed over the plastic containing the shabu to accused
Zarraga, who handed the same to the poseur-buyer:
Q

Whom did you approach to buy the shabu?

The two of them, Sir.

While the two of them was (sic) sitting inside the car, what did you tell

them?
A

They asked me if I can afford to buy the 100 grams, Sir.

And what was your response?

I answer in (sic) affirmative, Sir.

And what happened next?

After that I showed my money, Sir.

Now, tell us when you said they reply (sic) in the armative
specifically. . . . I withdraw that.

When you said they asked you whether you can aord to buy 100
grams tell us who asked you that question?

Sonny Zarraga, Sir.

And after you answer (sic) in the affirmative, what was his response?

He let his companion to (sic) bring out the shabu, Sir.

Did his companion bring out the shabu?

Yes, Sir.

What happened to the shabu?

Alvin Jose handed the shabu to his companion Sonny Zarraga.

After that, what did Sonny Zarraga do with the shabu?

He handed it to me, Sir.

After this shabu was handed to you, what happened next?

After examining the shabu, I put it in my pocket and then I handed to

When you say money, which money are you referring to?

The P1,000.00 bill with the bundle of boodle money, Sir.

Now, after you handed the money to the accused, what happened
next?

I made signs to my companions, Sir.

What signs did you give?

I acted upon our agreement by scratching my head, Sir.

cIHCST

And how did your companions respond to your signal?

After scratching my head, my companions approached us and

Now, tell us, do you know, in particular, who arrested Sonny Zarraga?

Yes, Sir.

Tell us.

SPO1 William Manglo and PO3 Wilfredo Luna, Sir.

Can you describe to us the manner by which Sonny Zarraga was

Yes, Sir.

Please tell us.

They introduced themselves as NARCOM operatives, Sir.

And after that, what happened?

They recovered the money from Sonny Zarraga, Sir.

13

xxx xxx xxx

What happened to the shabu which was handed to you by the

It was brought by our office to the crime laboratory, Sir.

Who made the request for its examination?

SPO3 Edgar Groyon, Sir.

Earlier, you said that the shabu was handed to you. What did you do
with the shabu?

While we were at the area, I handed it to SPO1 William Manglo, Sir.

Tell us, when this shabu was handed to you by the accused, in what
container was it contained?

When it was handed to me by Sonny Zarraga it was wrapped in a

It was accused Zarraga who drove the car and transacted with the poseur-buyer
relative to the sale of shabu. It was also accused Zarraga who received the buymoney from the poseur-buyer. Aside from bringing out and handing over the plastic
bag to accused Zarraga, the petitioner merely sat inside the car and had no other
participation whatsoever in the transaction between the accused Zarraga and the

poseur-buyer. There is no evidence that the petitioner knew what was inside the
plastic and soft white paper before and at the time he handed over the same to his
cousin. Indeed, the poseur-buyer did not bother to ask the petitioner his age
because he knew that pushers used young boys in their transactions for illegal
drugs. We quote the testimony of the poseur-buyer:
HESAIT

ATTY. VERANO:
Q

Did you try to find out if they were friends of your informant?

No, Sir.

Did you find out also the age of this Mr. Alvin Yamson?

I don't know the exact age, what I know is that he is a minor, Sir.

Eventually, you find (sic) out how old he is (sic)?

I don't know, Sir.

Mr. Guevarra, may I remind you that, in your adavit, you stated the
age of the boy?

I cannot recall anymore, Sir.

Were you not surprised from just looking at the boy at his age, were
you not surprised that a young boy like that would be in a group
selling drugs?

FISCAL:
It calls for an opinion, Your Honor.
ATTY. VERANO:
May I ask, Your Honor, if he did not further interrogate why or how this
very young boy (sic) selling 100 grams of shabu.
COURT:
The witness may answer.

cHaADC

WITNESS:
A

No more, Sir, because I know that young boys are being used by
pushers. 15

Even on cross-examination, the public prosecutor failed to elicit from the petitioner
facts and circumstances showing his capacity to discern right from wrong. We quote
the questions of the public prosecutor on cross-examination and the petitioner's
answers thereto:
FISCAL:

Cross, Your Honor. May I proceed.

Mr. Witness, you started your narration that it started on November

WITNESS:
A

Yes, Sir.

Now, when you went to Manuela, you came from Filinvest, Quezon
City? You left Filinvest, Quezon City, at 12 o'clock?

No, Sir.

What time did you leave?

After lunch, Sir.

Now, on the second day which you claimed that you were in the
custody of the police, you said that at one occasion on that day, you
have (sic) a chance to be with your cousin in a [L]ancer car and it was
inside that [L]ancer car when your cousin saw his own cellular phone
on one of the seats of the car, is that correct?

Yes, Sir.

Did your cousin tell you that that was his rst opportunity to make a
call to anybody since the day that you were arrested?

He did not say anything, he just get (sic) the cellular phone.

Did you come to know the reason how that cellular phone appeared
inside that [L]ancer car?

No, Sir.

Now, going back to the rst day of your arrest. You said that you
were accosted by a male person at the workshop and then you went
out of Megamall and when you went outside, this man saw the key of
the car dangling at the waist. At whose waist?

IcCDAS

aSIDCT

From my cousin.

And at that time, that person did not have any knowledge where your
car was?

No, Sir.

And your cousin told him that your car was parked at the third level
parking area of SM Megamall, is that correct?

Yes, Sir.

And at that time, that man did not make any radio call to anybody?

No, Sir.

Until the time that you reached the third level parking of Megamall, he
had not made any call?

No, Sir.

And yet when you reach (sic) the third level parking of the Megamall,
you claimed that there was already this group which met you?
TECIaH

Yes, Sir.

And this group were the policemen who are the companions of the
male person who arrested you?

Yes, Sir.

Do you know the reason why they were there at that time?

No, Sir.

These people do not know your car?

No, Sir.

FISCAL:
No further question, Your Honor.
ATTY. VERANO:
No re-direct, Your Honor.
COURT:
Q

Mr. Witness, earlier you stated that you are not a drug user nor have
you seen any shabu. In support of your claim, are you willing to
submit yourself to an examination?

WITNESS:
A

Yes, Your Honor.

Are you willing to submit a sample of your urine to this Court?

HScaCT

Yes, Sir.

COURT:
The witness is discharged.

16

The claim of the OSG that the prosecution was able to prove that the petitioner
conspired with his co-accused to sell shabu to the poseur-buyer, and thereby proved
the capacity of the petitioner to discern right from wrong, is untenable. Conspiracy
is dened as an agreement between two or more persons to commit a crime and
decide to commit it. Conspiracy presupposes capacity of the parties to such
conspiracy to discern what is right from what is wrong. Since the prosecution failed
to prove that the petitioner acted with discernment, it cannot thereby be concluded
that he conspired with his co-accused. Indeed, in People v. Estepano , 17 we held
that:
Clearly, the prosecution did not endeavor to establish Rene's mental capacity
to fully appreciate the consequences of his unlawful act. Moreover, its
cross-examination of Rene did not, in any way, attempt to show his
discernment. He was merely asked about what he knew of the incident that
transpired on 16 April 1991 and whether he participated therein.
Accordingly, even if he was, indeed, a co-conspirator, he would still be
exempt from criminal liability as the prosecution failed to rebut the
presumption of non-discernment on his part by virtue of his age. The crossexamination of Rene could have provided the prosecution a good occasion
to extract from him positive indicators of his capacity to discern. But, in this
regard, the government miserably squandered the opportunity to
incriminate him. 18

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the
Court of Appeals in CA-G.R. CR No. 22289 which armed the Decision of the
Regional Trial Court of Calamba, Laguna, Branch 36, is SET ASIDE. The petitioner is
ACQUITTED of the crime charged for insufficiency of evidence. 19
No costs.
SO ORDERED.

Puno, Austria-Martinez, Tinga and Chico-Nazario, JJ., concur.

Penned by Associate Justice Juan Q. Enriquez, Jr., with Associate Justices

2.

Penned by Judge Norberto Y. Geraldez.

3.

Rollo, p. 22.

4.

Id. at 83-84.

5.

Id. at 84-85.

6.

Id. at 88.

7.

Id. at 24-25.

8.

Id. at 8.

9.

Wharton Criminal Law, Vol. I, p. 74.

10.

Jarco Marketing Corporation v. Court of Appeals , 321 SCRA 375 (1999);

11.

Godfrey v. State, 31 Ala. 323 (1858).

12.

Adams v. State, 262 A.2d 60 (1970).

13.

TSN, 30 July 1996, pp. 7-9.

14.

Id. at 10.

15.

Id. at 29.

16.

TSN, 23 September 1997, pp. 27-29.

17.

307 SCRA 701 (1999).

18.

Id. at 712.

19.

There is no showing in the Rollo whether the petitioner posted bail or is detained.