Republic of the Philippines

COURT OF APPEALS
Manila

***

SEVENTH DIVISION

VICTOR LORENZO T. ROSALES, CA-G.R. CR No. 39213

Petitioner,

Members:

CASTILLO, M., Chairperson

BUESER, D.Q., and
- versus - PEREZ, P.A., JJ.

Promulgated:

11/22/2018
PEOPLE OF THE PHILIPPINES,
Respondent.
x ------------------------------------------------------------------------------------------------------ x

DECISION
CASTILLO, M., J.:

This is a petition for review under Rule 42, assailing the

Judgment1 of the Regional Trial Court of Naga City, Branch 25 (RTC),
which affirmed the Judgment 2 of the Municipal Trial Court in Cities of
Naga City, Branch 3 (MTCC), finding petitioner Victor Lorenzo T.
Rosales (“Rosales”) guilty of the offense of Violation of Presidential
Decree No. 1866, as amended by Republic Act No. 8294. The factual
antecedents are as follows:

In the Information3 dated 17 December 2003, Rosales was

charged as follows:

1 Rollo, p. 25.
2 Rollo, p. 19.
3 Rollo, p. 51.
CA-G.R. CR No. 39213 2
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“That on or about October 24, 2003, in the City

of Naga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then
and there, willfully, unlawfully and feloniously have in
his possession, custody, and control thirteen (13) pcs.
Ammunition for cal. 9Mm pistol without the necessary
permit or authority to possess the same.

CONTRARY TO LAW.”

Upon arraignment, Rosales pleaded not guilty to the offense.

On pre-trial, the defense admitted the identity of the accused.

Trial ensued.

The prosecution evidence is summarized as follows:

On 24 October 2003, a team of police officers composed of

Chief of Police Francisco Peñaflor, Jr., Police Chief Inspector Jesus
Martirez (“PCI Martirez”), SPO4 Popanes, SPO1 Edmundo Sto.
Domingo, SPO1 Francisco Destura, SPO1 Jose Luis Caparroso
(“SPO1 Caparroso”), PO3 Rudel Morabella, PO2 Feliciano, and a
member of the SWAT Team implemented Search Warrant No. 2003-
0454 at Santol Street, Zone 1, Balatas, Naga City. The search warrant
was issued by Judge Corazon Tordilla against herein petitioner
Rosales, intended to search for different calibers of firearms and
different kinds of ammunition.

When the raiding team arrived at the vicinity of the place

indicated in the search warrant, the team, together with Barangay
Kagawad Efren Vibares (“Brgy. Kgd. Vibares”), proceeded to the
residence of the accused. As Rosales was not present then, the
search warrant was served upon his wife, Felizmen Cortez Rosales
(“Felizmen”). Felizmen allowed the search.

As a consequence of the search, the police officers recovered

the following under the bed in the master bedroom: 2 pieces long
magazine of M16 rifle, 3 pieces short magazine of M16 rifle, 55
pieces of M16 ammunition, 1 piece Cal. 45 ammunition, and 13
pieces 9mm bullets. This case relates to the thirteen (13) pieces of
9mm bullets.

The recovered items were initialed by SPO1 Caparroso. SPO4

Popanes prepared the Receipt for Property Seized, which was signed
4 Rollo, p. 52.
CA-G.R. CR No. 39213 3
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by Felizmen, Brgy. Kgd, Vibares, and PCI Martirez. A Certification of

Orderly Search was also signed by Felizmen, who was present
during the entire search. After the search, the raiding team brought
the recovered items to the Naga City Central Headquarters for proper
booking.

For his defense, Rosales and his parents' former househelper,

Violeta Lopez (“Lopez”) testified.

Although Rosales admitted that the subject ammunition were

found under the bed inside his room, he denied ownership of those.
Rosales claimed that the ammunition were owned by his late father
who was duly licensed to carry firearms and ammunition. He stated
that before his father died in 2001, the latter asked him to keep the
items, as his father's house, which was located within the same
compound, was then undergoing renovation. When his father died,
Rosales did not bother about the ammunition, until they were
confiscated by the police when they implemented the search warrant
in 2003. He admitted that he did not have a license to carry firearms.

To corroborate Rosales' testimony, Lopez testified that she

used to work for Rosales' parents and among her tasks was to clean
the house. Lopez stated that whenever she cleaned the house, she
would see a box containing bullets in the room of Rosales' parents.
Sometime in 2001, when Rosales' househelper left, Rosales asked
Lopez to clean his house. It was then that Lopez saw the same box of
bullets she used to see in the house of Rosales' parents. According
to Lopez, Rosales' father told her not to touch the bullets under
Rosales' bed as they were his and were there only for safekeeping.

After trial on the merits, the MTCC issued its decision. The
dispositive portion states:

“WHEREFORE, his guilt having been proven

beyond reasonable doubt, VICTOR LORENZO
TIMARIO ROSALES aka “CHINGLO” is hereby
CONVICTED of the charge and is accordingly
SENTENCED to five (5) years, four (4) months and
twenty-one (21) days as minimum to six (6) years of
prision correccional as maximum and to pay a FINE of
FIFTEEN THOUSAND PESOS (P15,000) with
subsidiary imprisonment of thirty (30) days should he
be unable to pay the fine or or before this Judgment
becomes final.
CA-G.R. CR No. 39213 4
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The subject ammunitions are CONFISCATED

in favor of the government. The Branch Clerk of Court
is directed to turn them over to the Provincial
Command of the Philippine National Police which
shall acknowledge, in writing, receipt thereof.

SO ORDERED.”

According to the MTCC, the prosecution established the

presence of the elements of the crime of illegal possession of
firearms, i.e.: a) the existence of the subject firearm (or ammunition);
and b) that the accused who owned or possessed the firearm did not
have the corresponding license or permit to possess.

The trial court found that Rosales' possession of the

ammunition was evident from the fact that he had immediate physical
control over them and over the place in which they were found. The
MTCC also noted that Rosales never denied the existence of the
ammunition seized from his residence pursuant to a valid search
warrant. As to the second element, Rosales admitted that he had no
license to possess the subject bullets.

The trial court did not give credence to Rosales' defense that
the bullets belonged to his father. The trial court ruled that not only
did the allegation not have factual basis, but also that such claim did
not have merit in view of the fact that the crime of illegal possession
of firearms was mala prohibita, for which criminal intent was not
necessary.

Aggrieved, Rosales filed an appeal5 before the RTC.

Rosales argued that the fact that the ammunition were found in
his house did not amount to “possession” as contemplated by law.
Rosales insisted that the ammunition belonged to his father, and that
they were only in his house for safekeeping. He contended that it did
not suffice that a person was found to have some bullets around him,
but that such possession must be that which was not temporary,
casual or harmless. Rosales also harped on the testimony of Lopez
to corroborate his claim regarding his father's ownership of the
bullets.

The RTC denied the appeal.

5 Rollo, p. 53.
CA-G.R. CR No. 39213 5
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The RTC was not persuaded by Rosales' claim that the

ammunition belonged to his father. Further, the RTC ruled that even
granting that the bullets belonged to his father, it noted that Rosales
did not present his father's license to carry. Moreover, the RTC found
it questionable that Rosales did not return the bullets to his father's
house, or dispose of them, as they were merely in his house for
safekeeping, and he did not have a license to carry them anyway.
The RTC found it hard to believe Rosales' claim that he had totally
forgotten about those bullets. The RTC also stressed that the crime of
illegal possession of firearms was a crime malum prohibita, in which
case the absence of criminal intent was not a valid defense.

Hence, this petition.6 Rosales avers that the lower court erred in
the following: a) in not giving credence to the defense's evidence by
making wrongful speculations and conjectures; b) in not appreciating
the evidence that clearly proved lack of animus possidendi and which
was not even controverted by the prosecution; c) in deciding the case
with a predisposition that the accused is not presumed innocent.

According to Rosales, he was able to substantially show that he

was seldom in his house as he was a businessman always attending
to his business in Manila, as in fact, he was in Manila when the
search in his house in Naga was conducted. He also maintained that
the ammunition found under his bed belonged to his deceased father,
who gave him the box for safekeeping while his father's house was
being renovated.

Rosales explains that he did not return the box to his father's
house after the renovation as he did not even remember when the
renovation was finished. He claims that his father might have died
even before the renovation was over. According to him, the
renovation started in 2000, and his father died in 2001.

As to the matter of disposal of ammunition, Rosales contends

that he could not have disposed of the same legally, as he did not
have the necessary license to possess the same. He argues that
bullets may only be disposed by firing them or giving them away,
either of which would have been a graver offense. He also did not
want to bother his octogenarian mother with a box of bullets.

With respect to the trial court's finding that Rosales did not have
evidence to show that his father had a license to carry firearms,

6 Rollo, p. 11.
CA-G.R. CR No. 39213 6
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Rosales argues that it would have been absurd to ask his father for a
license when he was only supposed to hold them for safekeeping.

Rosales insists that he had forgotten about those bullets

because starting around 2001, he was already practically residing in
Manila. He argues that even if he remembered about the box, there
was nothing else that could be done with them except to let them
remain where they were kept.

Rosales maintains in this petition that he did not have animus

possidendi over the ammunition. He argues that although the crime
charged is malum prohibita, jurisprudence is replete with rulings that
actual or physical possession is not sufficient to convict as long as
the criminal intent to possess is absent.

In this case, Rosales contends that only the presence of

ammunition under his bed was proven, and that there was no
evidence to support the presence of animus possidendi. He argues
that since he presented evidence to prove lack of animus possidendi,
the prosecution should have presented evidence to rebut the same.
As there was no controverting evidence, Rosales asserts that the
element of animus possidendi was not established.

Finally, Rosales alleges that this case was decided by the trial
court with a predisposition that the accused is guilty, contrary to the
constitutional presumption of innocence.

Rosales prays for his acquittal.

On the other hand, respondent, thru the Office of the Solicitor

General (OSG), prays that Rosales' petition be denied.

In the Comment7, the OSG parries that the prosecution clearly

established animus possidendi. According to the OSG, the rule is
that ownership is not an element of illegal possession of firearms.
What the law requires is merely possession, which includes not only
actual physical possession, but also constructive possession, or the
subjection of the thing to one's control and management.

The OSG argues that since the bullets were in his possession,
it is upon Rosales to prove that his possession over them is merely
temporary, incidental, or casual. However, his defense that he merely

7 Rollo, p. 165.
CA-G.R. CR No. 39213 7
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forgot about them after they were given to him for safekeeping is
unbelievable.

The appeal has no merit.

Rosales stands charged for the offense of illegal possession of

ammunition. At the time of the alleged commission of the crime, the
applicable law was Presidential Decree No. 1866, as amended by
Republic Act No. 82948. The pertinent provision provides:

Section 1. Unlawful manufacture, sale, acquisition,

disposition or possessing of firearms or ammunition or
instruments used or intended to be used in the
manufacture of firearms or ammunition. – The penalty
of prision correccional in its maximum period and a
fine of not less than Fifteen Thousand Pesos
(P15,000) shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low powered firearm, such as
rimfire handgun, .380 or .32 and other firearm of
similar power, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be
used in the manufacture of any firearm or ammunition:
Provided, That no other crime was committed.

xxx

In a prosecution for the above-cited provision, the elements that

must be established are the following: (1) the existence of the subject
firearm or ammunition; and (2) the fact that the accused who
possessed or owned the same does not have the corresponding
license for it. Possession without the requisite license must be
coupled with animus possidendi, or the accused's intent to possess
the firearm.9

Both elements are present in this case.

First, Rosales was in possession of the ammunition.

The presence of this element is undisputed. The ammunition

were found under Rosales' bed in his house in Naga City. Being that

8 An Act Amending the Provisions of Presidential Decree No. 1866, as Amended, Entitled “Codifying
the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of
Firearms, Ammunition or Explosives or Instruments Used in the Manufacture of Firears, Ammunition
or Explosives, and Imposing StifferPenalties for Certain Violations Thereof, and for Relevant
Purposes,” 6 June 1997.
9 Jacaban v. People of the Philippines, G.R. No. 184355, 23 March 2015.
CA-G.R. CR No. 39213 8
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the ammunition were located under his bed in his room in his house,
clearly the ammunition were within Rosales' control.

Although Rosales claims that the ammunition were not his, the
rule is that ownership is not an essential element of illegal possession
of ammunition. What the law requires is only possession, which
includes constructive possession or the subjection of the thing to
one's control or management.10 The inclusion of constructive
possession within the contemplation of the law against illegal
possession of firearms and ammunition is in furtherance of ensuring
that the manifest intent of the law will be achieved. 11

The second element is also present. Rosales admitted that he

did not have the necessary license to carry firearms or ammunition.

Clearly, Rosales committed the offense of illegal possession of

ammunition.

In arguing for his acquittal, Rosales heavily relies on his claim

that animus possidendi was not established by the prosecution.
According to Rosales, there was no animus possidendi as the
ammunition belonged to his father, and that they were only in his
house for safekeeping pending the renovation of his father's house.

We are not persuaded.

The Supreme Court explained the concept of animus

possidendi and the difference between criminal intent and the intent
to commit an act prohibited by law, to wit:

When a crime is punished by a special law, as a rule,

intent to commit the crime is not necessary. It is
sufficient that the offender has the intent to perpetrate
the act prohibited by the special law. Intent to commit
the crime and intent to perpetrate the act must be
distinguished. A person may not have consciously
intended to commit a crime; but he did intend to
commit an act, and that act is, by the very nature of
things, the crime itself. In the first (intent to commit the
crime), there must be criminal intent; in the second
(intent to perpetrate the act), it is enough that the
prohibited act is done freely and consciously.” 12

10 Supra.
11 Fajardo v. People, G.R. No. 190889, 10 January 2011.
12 People v. De Gracia, et. al., G.R. Nos. 102009-10, 6 July 1994.
CA-G.R. CR No. 39213 9
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Thus, animus possidendi is that intent to possess, without

regard to any other criminal intent. In order that one may be found
guilty of illegal possession of ammunition, 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.13

It is clear in this case that Rosales intended to have the

ammunition in his possession. When he, as he claimed, took the
ammunition in his house for safekeeping, it was a deliberate act on
his part to keep them in his custody. The amount of time that lapsed
from the time he took in the ammunition to the day of the
implementation of the search warrant is too long to be considered as
“temporary, incidental, casual, or harmless.” Examples of possession
that have been ruled as not punishable include instances when one
picks up a weapon to hand it to another, 14 or when one gains
possession in order to disarm the owner. 15 Rosales' possession in
this case does not come within the purview of such nature of
possession.

Rosales cannot find solace in his contention that he simply did

not bother about the ammunition after his father died. More
importantly, his argument that he could not get rid of the ammunition
through legal means is devoid of truth.

If it was true that the ammunition belonged to his father, the

prudent thing to do would have been to surrender the ammunition to
the authorities. If his father had a license to carry them, the
authorities would have a record of that. Furthermore, the government
gives opportunities for holders of loose firearms to surrender the
same without incurring criminal liability. In fact, on 22 January 2003,
a few months before the seizure of the items, an executive order was
issued for such purpose.16

Rosales could have easily inquired with police authorities about

measures that he could have taken to dispose of the ammunition and
avoid criminal liability. Rosales did not.

13 Dela Cruz v. People, G.R. No. 209387, 11 January 2016.

14 People v. Estoista, G.R. No. L-5793, 27 August 1953.
15 People v. Remereta, as cited in People v. Dela Rosa, G.R. No. 84857, 16 January 1998.
16 Executive Order No. 171, Providing for the Surrender and Licensing of Loose Firearms and the
Utilization of Funds from the Proceeds Thereof, 22 January 2003.
CA-G.R. CR No. 39213 10
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Thus, the unavoidable conclusion is that Rosales intended to

keep the ammunition within his possession and under his control,
which, for purposes of this case, amounts to animus possidendi.

Therefore, We affirm the conviction.

We likewise affirm the penalty. Under P.D. No. 1866, the

imposable penalty is prision correccional in its maximum period, or
four (4) years, two (2) months, and one (1) day to six (6) years. The
trial court imposed the penalty of five (5) years, four (4) months and
twenty-one (21) days to six (6) years, which is within the imposable
range.

We also affirm the order for the payment of fine of Fifteen

Thousand Pesos (Php15,000) and subsidiary imprisonment of thirty
(30) days should Rosales be unable to pay the fine on or before the
judgment becomes final.

WHEREFORE, premises considered, the instant petition is

DENIED. The Judgment of the Regional Trial Court of Naga City,
Branch 25 dated 30 May 2016 in Criminal Case No. 2015-0713 is
AFFIRMED.

SO ORDERED.

MARIFLOR P. PUNZALAN CASTILLO

Associate Justice

WE CONCUR:

DANTON Q. BUESER
Associate Justice

PABLITO A. PEREZ
Associate Justice
CA-G.R. CR No. 39213 11
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CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is
hereby certified that the conclusions in the above decision were
reached in consultation before the case was assigned to the writer of
the opinion of the Court.

MARIFLOR P. PUNZALAN CASTILLO

Associate Justice
Chairperson, Seventh Division