MTD for Kimaks

REPUBLIC OF THE PHILIPPINESNATIONAL CAPOITAL JUDICIAL REGION

REGIONAL TRIAL COURTMANILA

BRANCH XXII

PEOPLE OF THE PHILIPPINES,Plaintiff,

Crim. Case No.: 15-316523

For: Viol. of Sec. 28 (a) of

-versus- R.A. No. 10591

MARK DELA CRUZ Y BARCANCEL@ “MAKOY”

Accused.

x---------------------------------------------------x

MOTION TO DISMISSEx Abudanti ad Cautelam

COMES NOW Accused, by the Undersigned Counsel, unto this Most

Honourable Court most respectfully states that:

1. The Information dated 22 May 2015, charging Accused Mark Dela

Cruz Y Barcancel of violation of Section 28 (a) in relation to Sec 28 (e-1) of Repuclic

Act No. 10591 reads as follows:

“INFORMATION

The Undersigned accuses MARK DELA CRUZ Y BARCANCEL @

“MAKOY” of Violation of Section 28 (a) in relation to Section 28 (e-1) of

Republic Act No. 10591 otherwise known as the Comprehensive Law on

Firearms and Ammunition, comitted as follows:

That on or about May 19, 2015, in the City of Manila, Philippines, the

said accused, then and there willfully, unlawfully and knowingly have in his

possession and under his custody and control one (1) .45 caliber Pistol high

People v. Mark Dela CruzCrim. Case No. 15-316523

cap (trademark CASPIAN) bearing serial no. 767194 marked as “MDCE 5-19-

15” with Magazine marked as “MDCE-1 5-19-15” loaded with three (3) live

ammunitions marked as “MDCE-2 5-19-15 to MDCE-4 5-19-15” without first

having secured the necessary license or permit from the proper authorities.

Contrary to law.”

2. Accused DELA CRUZ was, likewise, charged for Attempted Homicide

before the Metropolitan Trial Court in the City of Manila Branch 19, the relevant

Information thereto is herein attached as ANNEX “A” and states as follows:

“INFORMATION

The Undersigned accuses MARK DELA CRUZ Y BARCANCEL

@ “MAKOY” and FREDERICK BARCANCEL Y POLENDEY @

FREDDIE of the crime of Attempted Homicide, comitted as follows:

That on or about May 19, 2015, in the City of Manila,

Philippines, the said accused, conspiring and confederating

together and mutually helping each other, with intent to kill, did

then and there willfully, unlawfully and feloneously commence the

commission of the crime of homicide, directly by overt acts, to wit:

by then and there holding one VIRGILIO MORILLO Y ROSARIO

on his collar, pointing a gun on his face and pulling the trigger but

said accused did not perform all the acts of execution which should

have produced the crime of homicide by reason of some cause or

accident other than his spontaneous desistance, that is, the gun

jammed and did not fire.

Contrary to law.”

3. Accused MARK DELA CRUZ is charged under the new firearms law,

particularly Sec. 28 par. A in relation to Sec. 28 par. E (1) of Republic Act No. 10591,

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otherwise known as the Comprehensive Law on Firearms and Ammunition which

reads as follows:

REPUBLIC ACT NO. 10591

AN ACT PROVIDING FOR A COMPREHENSIVE LAW ON FIREARMS AND AMMUNITION AND PROVIDING PENALTIES

FOR VIOLATIONS THEREOF

…

SEC. 28. Unlawful Acquisition, or Possession of Firearms and

Ammunition. – The unlawful acquisition, possession of firearms and

ammunition shall be penalized as follows:

(a) The penalty of prision mayor in its medium period shall be

imposed upon any person who shall unlawfully acquire or possess a

small arm;

…

(e) The penalty of one (1) degree higher than that provided in

paragraphs (a) to (c) in this section shall be imposed upon any person

who shall unlawfully possess any firearm under any or combination of

the following conditions:

(1) Loaded with ammunition or inserted with a loaded

magazine;

4. However, by express provision of the same Law, section 29 provides:

SEC. 29. Use of Loose Firearm in the Commission of a Crime. – The use

of a loose firearm, when inherent in the commission of a crime

punishable under the Revised Penal Code or other special laws, shall

be considered as an aggravating circumstance: Provided, That if the

crime committed with the use of a loose firearm is penalized by the law

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with a maximum penalty which is lower than that prescribed in the

preceding section for illegal possession of firearm, the penalty for illegal

possession of firearm shall be imposed in lieu of the penalty for the crime

charged: Provided, further, That if the crime committed with the use of a

loose firearm is penalized by the law with a maximum penalty which is

equal to that imposed under the preceding section for illegal possession of

firearms, the penalty of prision mayor in its minimum period shall be

imposed in addition to the penalty for the crime punishable under the

Revised Penal Code or other special laws of which he/she is found guilty.

If the violation of this Act is in furtherance of, or incident to, or in

connection with the crime of rebellion of insurrection, or attempted coup

d’ etat, such violation shall be absorbed as an element of the crime of

rebellion or insurrection, or attempted coup d’ etat.

If the crime is committed by the person without using the loose firearm,

the violation of this Act shall be considered as a distinct and separate

offense. (Emphasis Supplied)

5. Thus, clear from the letters of Information for the crime of Attempted

Homicide, the use of the firearm, is alleged in the said Information. And said use of

the firearm shall be considered as a generic aggravating circumstance for the crime

of Attempted Homicide by express provision of Section 29 of the new Firearms Law,

Republic Act No. 10591, which uses the mandatory terminology of “SHALL”.

6. And when such use of the firearm is inherently used in the commission

of a crime punishable under the Revised Penal Code, or other spacial law, the

penalty as provided under Section 29 of Republic Act. No. 10591 shall be observed.

7. Also, it is clear that under the last paragraph of Section 29 of the new

Comprehensive Firearms Law, the only instance that violation thereof can only be

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considered as a separate and distinct offense is that, when a crime is committed

without using a loose firearm.

8. And in accordance with the Ruling of the Supreme Court in People of

the Philippines v. Guillermo Nepomuceno Jr., (G.R. No. 130800, July 29, 1999),

which involves a case wherein accused Nepomuceno was charged separately with

the crime of parricide and violation of the Presidential Decree 1866 as amended by

Republic Act. No. 8294, or the then firearms law, the Supreme Court acquited

Nepomuceno in this wise:

Under the old second paragraph of Section 1 of P.D. No. 1866, if the

killing of a person is committed, with the use of the unlicensed firearm,

the accused could be prosecuted for, and convicted of, (1) illegal

possession of firearm in an aggravated form and (2) either murder or

homicide. In People v. Quijada, 8 this Court declared:

The unequivocal intent of the second paragraph of

Section 1 of P.D. No. 1866 is to respect and preserve homicide

or murder as a distinct offense penalized under the Revised

Penal Code and to increase the penalty for illegal possession of

firearm where such a firearm is used in killing a person. Its

clear language yields no intention of the lawmaker to repeal or

modify, pro tanto, Articles 248 and 249 of the Revised Penal

Code, in such a way that if an unlicensed firearm is used in the

commission of homicide or murder, either of these crimes, as

the case may be, would only serve to aggravate the offense of

illegal possession of firearm and would not anymore be

separately punished. Indeed, the words of the subject provision

are palpably clear to exclude any suggestion that either of the

crimes of homicide and murder, as crimes mala in se under the

Revised Penal Code, is obliterated as such and reduced as a

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mere aggravating circumstance in illegal possession of firearm

whenever the unlicensed firearm is used in killing a person.

The only purpose of the provision is to increase the penalty

prescribed in the first paragraph of Section 1 — reclusion

perpetua in its maximum period to reclusion perpetua to death,

seemingly because the accused's manifest arrogant defiance

and contempt of the law in using an unlicensed weapon to kill

another, but never, at the same time, to absolve the accused

from any criminal liability for the death of the victim.

But, pursuant to the amendment, the use of an unlicensed firearm in the

commission of murder or homicide is treated as an aggravating

circumstance. Therefore, the illegal possession or use of the unlicensed

firearm is no longer separately punished. This Court emphatically said so

in People v. Bergante, 9 thus:

The violation of P.D. No. 1866 should have been

punished separately conformably with our ruling in People v.

Quijada. Nevertheless, fortunately for appellant Rex

Bergante, P.D. No. 1866 was recently amended by Republic

Act. No. 8294, otherwise known as "An Act Amending the

Provisions of Presidential Decree No. 1866, as Amended.

The third paragraph of Section 1 of said Act provides that

"if homicide or murder is committed with the use of an

unlicensed firearm, such use of an unlicensed firearm shall

be considered as an aggravating circumstance." In short,

only one offense should be punished, viz ., either homicide

or murder, and the use of the unlicensed firearm should

only be considered as an aggravating circumstance. Being

favorable to Rex Bergante, this provision may be given

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retroactive effect pursuant to Article 22 of the Revised Penal

Code, he not being a habitual criminal.

Being clearly favorable to NEPOMUCENO, who is not a habitual

criminal, the amendment to the second paragraph of Section 1 of P.D. No.

1866 by R.A.. No. 8294 should be given retroactive effect in this case.

Considering that NEPOMUCENO was in fact convicted in the case for

parrictide, and that his conviction was affirmed in our decision of 11

November 1998 in G.R. No. 127818, with the slight modification that the

penalty should be reclusion perpetua and not "forty years of reclusion

perpetua," it follows that NEPOMUCENO should be ACQUITTED in the

case at bar. (Emphasis Supplied)

9. And in PEOPLE OF THE PHILIPPINES vs. PO2 ALBERT ABRIOL,

MACARIO ASTELLERO, and JANUARIO DOSDOS, (G.R. No. 123137, October 17,

2001) wherein at the recommendation of the Solicitor General, The Supreme Court

held that the use of an unlicesed firearm in murder or homicide is not a separate

crime and ruled as follows:

“The Office of the Solicitor General recommends that although appellants

were charged with and convicted of two separate offenses of murder and

violation of P.D. No. 1866, R.A. No. 8294, which amended said decree,

should be applied to appellants retroactively, citing People v. Molina, 292

SCRA 742, 779 (1998) interpreting R.A. No. 8294.

We agree. We ruled in Molina that with the passage of R.A. No. 8294

on June 6, 1997, the use of an unlicensed firearm in murder or

homicide is not a separate crime, but merely a special aggravating

circumstance. This was recently reiterated in People v. Castillo, G.R.

Nos. 131592-93, February 15, 2000. Appellants are thus guilty only of

murder with the special aggravating circumstance of use of unlicensed

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firearms. The imposition of the penalty of reclusion perpetua cannot

however be modified since the murder took place before the effectivity of

R.A. No. 7659.” (Emphasis Supplied)

10. Consequently, the Supreme Court laid down the rules in cases of

violation of the the firearms law committed with other crimes in the leading case of

People of the Philippines v. Walpan Ladjaalam, (G.R Nos. 136149-51, September

19, 2000), as reiterated in the recent case of Arnel Sison v. People of the

Philippines, (G. R No. 187229, February 22, 2012)

“Citing People v. Jayson, the OSG argues that the foregoing provision

does not cover the specific facts of this case. Since another crime -- direct

assault with multiple unlawful homicide -- was committed, appellant

cannot be convicted of simple illegal possession of firearms under the

second paragraph of the aforecited provision. Furthermore, since there

was no killing in this case, illegal possession cannot be deemed as an

aggravating circumstance under the third paragraph of the provision.

Based on these premises, the OSG concludes that the applicable law is not

RA 8294, but PD 1866 which, as worded prior the new law, penalizes

simple illegal possession of firearms even if another crime is committed at

the same time.

Applying a different interpretation, the trial court posits that appellant

should be convicted of illegal possession of firearms, in addition to direct

assault with multiple attempted homicide. It did not explain its ruling,

however. Considering that it could not have been ignorant of the proviso

in the second paragraph, it seemed to have construed no other crime as

referring only to homicide and murder, in both of which illegal possession

of firearms is an aggravating circumstance. In other words, if a crime

other than murder or homicide is committed, a person may still be

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convicted of illegal possession of firearms. In this case, the other crime

committed was direct assault with multiple attempted homicide; hence,

the trial court found appellant guilty of illegal possession of firearms.

We cannot accept either of these interpretations because they ignore

the plain language of the statute. A simple reading thereof shows that

if an unlicensed firearm is used in the commission of any crime, there

can be no separate offense of simple illegal possession of firearms.

Hence, if the other crime is murder or homicide, illegal possession of

firearms becomes merely an aggravating circumstance, not a separate

offense. Since direct assault with multiple attempted homicide was

committed in this case, appellant can no longer be held liable for

illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused.

In this case, the plain meaning of RA 8294s simple language is most

favorable to herein appellant. Verily, no other interpretation is

justified, for the language of the new law demonstrates the legislative

intent to favor the accused. Accordingly, appellant cannot be

convicted of two separate offenses of illegal possession of firearms

and direct assault with attempted homicide. Moreover, since the

crime committed was direct assault and not homicide or murder,

illegal possession of firearms cannot be deemed an aggravating

circumstance.

…

Just as unacceptable is the interpretation of the trial court. We find no

justification for limiting the proviso in the second paragraph to murder

and homicide. The law is clear: the accused can be convicted of simple

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illegal possession of firearms, provided that no other crime was

committed by the person arrested. If the intention of the law in the

second paragraph were to refer only to homicide and murder, it

should have expressly said so, as it did in the third paragraph. Verily,

where the law does not distinguish, neither should we.” (Emphasis

Supplied)

11. Now, as again quoting, Section 29 of the New Firearms Law, Republic

Act No. 10591, otherwise known as the Comprehensive Law on Firearms and

Ammunition provides that, the use of loose firearm shall be considered as an

aggravating circumstance when crime is committed which is punishable under the

Revised Penal Code or any other Special Law,

12. As in this case, Accused herein MARK DELA CRUZ has been accused

in a separate Information for Attempted Homicide, a crime punishable under the

Revised Penal Code, which such use of an unlicensed firearm is duly alleged in the

said Information for Attempted Homicide.

13. And under the last paragraph of Republic Act No. 10591 which reads,

that if the crime is committed by the person without using the loose firearm, only

then will be that, violation of this Act shall be considered as a distinct and separate

offense.

14. What is at stake in all criminal cases is either the life or, as herein

present, the liberty of a human being in the person of the Accused. Hence,in case

there is a cloud within the letters of the law which places in limbo the life or liberty of

an Accused, then the justice should tilt in favor of the latter as guaranteed and

anchored on the Constitutional Provision on the Presumption of Innocence.

15. Whereas here, Section 29 of Republic Act No. 10591 otherwise known

as the Comprehensive Firearms and Ammunitions Act is clear, that an Acccused

charged with a felony or offense using a loose firearm SHALL only be charged with

the felony or offense thus committed.

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16. Further, such use of a loose firearm SHALL aggravate, in accordance

with the penal provisions of Section 28 of the said law, the felony or offense which

the Accused committed, and this aggravating circumstance is properly alleged in the

Information charging Accused MARK DELA CRUZ in the crime of Attempted

Homicide.

17. In this light, the Republic Act No. 10591 which accuses MARK DELA

CRUZ of the possession of a loose firearm is clear as provided in the foregoing, and

the Supreme Court is consistent that when there is no doubt in the provisions of the

law, there is no room other than its plain interpretation.

18. Verily, as to be consistent with the foregoing laws and prevailing

jurisprudence, a dismissal of the present case would be proper as submitted before

the wisdom of this Honourable Court.

P R A Y E R

WHEREFORE, in view of the foregoing, it is most respectfully prayed of

this Most Honourable Court that the present case be DISMISSED.

Praying, further, for such other reliefs in law and equity.

Manila for Quezon City, 24 September 2015.

The Law Firm of:

DAVID B. AGONCILLOCounsel for Plaintiffs-Appellants

Office AddressNo. 1425-A Pampanga Street

Tondo, ManilaRoll No. 25604

IBP Receipt No. 94947612 November 2015 Manila 4

MCLE Cert. of Comp. No. 111-0005754PTR VC-3371533 12 January 2015

Email address: [email protected] No. 0919-279-7071

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mailto:[email protected]


N O T I C E O F H E A R I N G

The Branch Clerk of CourtRegional Trial CourtManila Br. 12

Assistant City ProsecutorCity of Manila

Greetings!

Please take notice that the Undersigned Counsel for the Accused will

submit the foregoing Motion to Dismiss Ex Abudanti Ad Cautelam for the approval of

the same by this Honourable Court on __ October 2015 at 8:30 (A.M.) in the

morning thereof.

DAVID B. AGONCILLO

E X P L A N A T I O N

Copy of this pleading was served through registered mail upon Assistant

City Prosecutor of Manila, for lack of personnel to effect personal service thereof.

DAVID B. AGONCILLO

Copy Furnished:

Assistant City ProsecutorCity of Manila2nd Floor Manila City Hall

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MTD for Kimaks

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