RODOLFO C. VELASCO v. PEOPLE OF THE PHILIPPINES
G.R. No. 166479 February
28, 2006
D E C I S I O N
CHICO-NAZARIO, J.:
Before Us is
a petition for review on certiorari which seeks to set aside the decision[1] of
the Court of Appeals in CA-G.R. CR No. 23366 dated 30 July 2004 which affirmed
the decision[2] of Branch 41 of the Regional Trial Court (RTC) of Dagupan City
in Criminal Case No. 98-02175-D dated 29 June 1999, finding accused-petitioner Rodolfo C. Velasco guilty of
Attempted Murder, and its Resolution[3] dated 21 December 2004 denying
petitioner’s motion for reconsideration.
An
Information[4] dated 20 April 1998 charged petitioner with the crime of
Attempted Murder committed as follows:
That on or about the 19th day of April, 1998, in the City of
Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, SN I RODOLFO C. VELASCO, being then armed with a gun, with
treachery and with intent to kill one FREDERICK MARAMBA, did then and there,
wilfully, unlawfully and criminally, attack, assault and use personal violence
upon the latter by shooting him, hitting him on the left upper arm, the said
accused having thus commenced a felony directly by overt acts but did not
perform all the acts of execution which could have produced the crime of
murder, by reason of some cause or accident other than his own spontaneous
desistance, to the damage and prejudice of said FREDERICK MARAMBA.
When
arraigned, petitioner, with the assistance of counsel de oficio, pleaded not guilty to the
crime charged.[5]
On 29
September 1998, the Hon. Luis M. Fontanilla, Executive Judge of RTC of Dagupan
City, ordered the release of petitioner after a surety bond was posted by the
Mega Pacific Insurance Corporation in the amount of P120,000.00.[6]
The evidence
is summarized by the trial court as follows:
The evidence of the prosecution tends to show that on April 19, 1998, at about 7:30 o’clock
in the morning, private complainant Frederick Maramba was cleaning and washing his owner type
jeep in front of his house at Lasip Grande, Dagupan City when a motorized tricycle
stopped near him. Accused Rodolfo Velasco dashed out of
the tricycle, approached the complainant and fired at him several times with a
.45 caliber pistol. The accused missed
with his first shot but the second one hit the complainant at the upper arm,
causing him to stumble on the ground.
The complainant stood up and ran, while the accused continued firing at
him but missed.
The
shooting incident was reported to the police sub-station in Malued District by
Barangay Captain Dacasin of Lasip Grande, describing the suspect as wearing a vest or a “chaleco.” The police, composed of SPO4 Romulo Villamil, PO3 Rolando Alvendo, and
SPO1 Soliven respondent and pursued the accused who proceeded on board a
motorized tricycle to the highway going to Barangay Banaoang in Calasiao town.
The police caught up with the
tricycle and brought the accused to the police sub-station. A firearm (Exhibit “A”) protruding from the waistline of
the accused, three (3) magazines (Exhibit “B”, “B-1” & “B-2”) and
fourteen (14) live ammunitions (Exhibits ‘C” to “C-13”) were confiscated from the possession of the
accused. The police also
recovered seven (7) spent ammunitions (Exhibits “D” to “D-6”) at the crime
scene. At the City Jail in Dagupan City
where the accused was subsequently brought, the private complainant Frederick
Maramba identified and pointed to the accused as the one who fired at him,
hitting him on the upper left arm.
Complainant identified the affidavit which he executed naming the
accused as his assailant (Exhibit “H”) and who shot him on the morning of April
19, 1998 in front of his residence at Lasip Grande.
Private
complainant further testified that he was hospitalized and treated at the
Region 1 Medical Center, Dagupan City by Dr. Arturo de Vera, Jr. who issued a
Medico-Legal Certificate stating that the victim sustained, “Gunshot wound
point of entry: 1.5 cm lateral aspect distal, 3rd arm left” and; “Gunshot wound
point of exit: 4 cm lateral aspect posterior, 3rd arm left” (Exhibit “I”). By reason of his wounds, complainant incurred
expenses for hospitalization and medicines in the total amount of P2,696.06
(Exhibit “J” to “J-14”).
Armando
Maramba, the driver of the tricycle in which the accused rode, testified that
he picked up the accused who was wearing a chaleco, at the intersection of
Pogo-Lasip Road. Upon reaching the
parked jeep which was being washed by the private complainant, the accused
ordered him to stop. The accused
alighted and fired several shots at the victim.
Then the accused went back to the tricycle and ordered him to proceed to
Calasiao. The accused alighted at the
intersection of the De Venecia Highway and Malued Road and took another
tricycle. Witness executed an affidavit
before the Police Headquarters in Dagupan City (Exhibit “G”) and identified the
accused as the one who shot the private complainant.
The
accused, on the other hand, interposed the defense of alibi. He said that on April 18, 1998, he went to a friend’s house in
Lingayen, Pangasinan and spent the night there.
The following morning, April 19, 1998, between 6:00 to 7:00 o’clock, he
left Lingayen riding in the Volkswagen car of Berting Soriano. He alighted at
the corner of Banaoang diversion road.
From there he took a tricycle and told the driver to bring him at the
foot of the bridge going to Bayambang.
While on his way to Calasiao, he heard a jeep behind him blowing its
horn and when he looked back he saw three men on board pointing their guns at
him. He told the tricycle driver
to stop and thereupon the three men approached him and introduced themselves as
policemen. They confiscated his gun and
then brought him to the police station for interrogation. Thereafter, the police lodged him in the City
Jail of Dagupan.
Accused
testified that he did not know personally the complaining witness and denied
having fired at him. He further said
that his .45 caliber pistol which was seized from him by the police is licensed
(Exhibit “2”).[7]
In its
decision dated 29 June 1999, the
RTC of Dagupan City, Branch 41, found petitioner guilty of the crime charged,
disposing of the case in this wise:
WHEREFORE, finding accused Rodolfo C. Velasco guilty beyond
reasonable doubt of the crime of attempted murder, defined and penalized under
Article 248, in relation to the 3rd par. of Arts. 6 and 51 of the Revised Penal
Code, he is hereby sentenced
to suffer the indeterminate penalty of Four (4) years of prision correccional,
as minimum to Eight (8) years and One (1) day of prision mayor, as maximum.
Accused
is further ordered to indemnify the complaining witness the amount of
P2,696.00, as actual damages.[8]
The trial
court gave credence to the testimonies of the private complainant Frederick
Maramba and Armando Maramba when they identified petitioner as the
assailant. It rejected petitioner’s
defense of alibi saying it was not impossible for him to be at the crime scene
when the crime was committed because the place where he allegedly alighted from
the car of a certain Berting Soriano was only about ten minutes away. It concluded that his defense cannot prevail
over the positive identification made by the prosecution witnesses.
On 1 July 1999, petitioner filed a Notice of Appeal
signifying his intention to appeal to the Court of Appeals.[9]
Pending appeal with the Court of Appeals, petitioner, after
filing a Motion to Bail, was allowed to post bail in the amount of
P160,000.00.[10] To obviate the
possibility of flight, the Bureau of Immigration and Deportation (BID) was
directed to include petitioner in its hold departure list.[11]
On 30 July 2004, the Court of Appeals dismissed the appeal and affirmed the decision of the
RTC. The decretal portion of the
decision reads:
WHEREFORE, for lack of merit, the appeal is DISMISSED. The assailed Decision dated June 29, 1999 of
the Regional Trial Court, Branch 41 of Dagupan City, in Criminal Case No.
98-02175-D, is hereby AFFIRMED. Costs
against accused-appellant.[12]
Petitioner
moved for a reconsideration of the decision which motion was denied per
resolution[13] dated 21 December 2004.
Petitioner
is now before us via petition
for review on certiorari, raising the following grounds:
I
THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE
DECISION OF THE REGIONAL TRIAL COURT.
II
THE COURT OF APPEALS GRAVELY ERRED WHEN IT DENIED THE MOTION
FOR RECONSIDERATION PER THE RESOLUTION DATED DECEMBER 21, 2004.[14]
Petitioner
invokes the defenses of denial and alibi.
He denies having shot the victim.
He alleges that the prosecution was not able to sufficiently establish
the identity of the assailant because the Barangay Chairman, who reported the
incident to the policemen, identified the assailant as one wearing a “chaleco,”
was not presented to corroborate the testimony of petitioner. He contends that had the Barangay Chairman
been presented, the latter’s testimony would have been adverse to the
prosecution. Instead, he points out that
the prosecution presented police officers who were not eyewitnesses. He adds that he had no motive to harm, much less kill, the victim, the
latter being a total stranger. He
explains that since the identity of the assailant is in doubt, motive becomes
important and his alibi gains weight and value.[15]
In a resolution
dated 6 April 2005, the Court, without giving due course to the petition,
required respondent to file a Comment.[16]
In its
Comment[17] dated 8 September 2005, respondent People of the Philippines,
through the Office of the Solicitor General (OSG), argues that the factual
findings of the Court of Appeals cannot be reviewed since the issue (i.e.,
positive identification) petitioner is raising involves the credibility of
witnesses and the weighing of evidence.
It asserts that since the same deals with a question of fact and there
being no instance present to take the case out of the general rule that factual
findings of the Court of Appeals may be reviewed, a review thereof cannot be
made because only a question of law can be re-examined if a petition for review
on certiorari under Rule 45 of the Rules of Court has been filed. It adds that even if the case is to be
decided on the merits, the petition likewise will fail.
In his
Reply,[18] petitioner submits that a review of the facts of the case is
justified on the ground that the Court of Appeals sanctioned substantial and
jurisprudential departures committed by the trial court. He maintains that (1) the trial court
precipitately observed that alibi is a weak defense; (2) the trial court did
not consider that the prosecution had no evidence proving his intention to
kill; (3) the trial court did not consider the fact that victim did not know
him and vice-versa; (4) it was impossible for him, a navy man – a protector of
the people – to have failed to fatally hit the victim after firing seven shots;
and (5) the instant case is a frame up.
On 17
October 2005, the Court gave due course to the petition and required the
parties to submit their respective memoranda.[19]
In his memorandum, petitioner further
argues that the findings of fact in this case should be reviewed because the
Court of Appeals erroneously restated the factual findings of the trial court
when it purposely omitted and added words changing the tenor of the shooting
incident as found by the trial court. He
adds that the findings of fact of the trial court do not support a conviction
of attempted murder but only attempted homicide as there was no treachery since
private complainant was still able to focus his eyes on the gunman until he was
fired upon. Further, he points out that
the Court of Appeals made different findings as to where the seven spent shells
were recovered. He maintains there was
suppression of evidence when the prosecution failed to present a ballistic
report on the seven empty shells that would show the identity of the
assailant. In addition, he claims that
since there was suppression of evidence on the part of the prosecution, the testimony of Armando Maramba
is not credible, he being a relative of the victim.
Petitioner
primarily invokes the defenses of denial and alibi. It is his claim that the prosecution failed
to conclusively establish the identity of the assailant and that he was merely
framed-up.
At the
outset, it must be stressed that the instant petition for review on certiorari
was filed pursuant to Rule 45 of the Rules of Court where a review is not a
matter of right but of sound judicial discretion and will be granted only when
there are special and important reasons therefor. It is not the function of
this Court to re-examine the evidence submitted by the parties unless the
findings of fact of the Court of Appeals are not supported by evidence on
record or the judgment is based on a misapprehension of facts. This Court is
limited to the review or revision of errors of law and not to analyze or weigh
the evidence all over again.[20]
We agree with the OSG that as ruled by this Court, no
questions of facts may be raised in this Court under Rule 45 of the Rules of
Court, unless, among other grounds, there is clear and convincing proof that
the judgment of the Court of Appeals is based on a misapprehension of facts or
when the Court of Appeals failed to notice and appreciate certain relevant facts
of substance which if properly considered would justify a different conclusion,
and when there is a grave abuse of discretion in the appreciation of facts in
the light of the evidence on record.
Anything less will not suffice to overturn the decision of the Court of
Appeals affirming on appeal the decision of the trial court. It bears stressing that the findings of facts
of the trial court, its calibration of the testimonial evidence of the parties
and the assessment of the credibility and probative weight of the evidence of
the parties and its conclusion anchored on its findings are given high respect
if not conclusive effect by this Court, especially if affirmed by the Court of
Appeals because of the unique advantage of the trial court of observing and monitoring
the demeanor, conduct and deportment of the witnesses as they regale the court
with their testimonies. The exception to
this rule is when the trial court ignored, overlooked, misconstrued or
misappreciated cogent facts and circumstances of substance which if considered
would alter the outcome of the case.[21]
After scrutinizing the records of the case and thoroughly evaluating all
the evidence proffered, we find no reason to deviate from the findings of facts
of the trial court as affirmed by the Court of Appeals.
In the case at bar, the testimonies of private complainant
Frederick Maramba and Armando Maramba were given credence and full probative
weight and credence by the trial court in the identification of petitioner as
the assailant. Private complainant saw petitioner alight
from the tricycle of Armando Maramba before he successively shot at him at a
distance of about four meters while chasing him for 25 to 30 meters.[22] Armando Maramba witnessed the shooting
because he was the driver of the tricycle in which petitioner rode in going to
the house of private complainant and in leaving the crime scene.[23] After the shooting incident, private
complainant went to the City Jail and identified petitioner as the person who
shot him.[24] At the Dagupan City Police
Station, Armando Maramba pointed to petitioner as the assailant not because he
saw a man wearing a chaleco, but because it was he whom he saw shoot the
private complainant.[25]
Petitioner asks that the findings of fact of the case should
be reviewed because the Court of Appeals erroneously restated the factual
findings of the trial court when it purposely omitted and added words changing
the tenor of the shooting incident as found by the trial court. Petitioner said the Court of Appeals
purposely added the word “suddenly” and replaced the phrase “near him” with “in
front of.” He adds that the Court of
Appeals added the phrase “without any warning” and removed the phrase
“approached the complainant.” He even
claims that the Court of Appeals changed the manner how private complainant was
shot, when he was hit, and how he stumbled and how he was able to stand up and
continue running. He further states that
the Court of Appeals made a different finding as to where the seven spent shells
were recovered. He points out that the
Court said the seven spent shells were recovered from the accused while the
trial court found that the same were found in the crime scene.
As above discussed, the findings of the trial court on its
assessment of the credibility of the witnesses and their testimonies and the
probative weight thereof, are accorded by the appellate court high respect if
not conclusive effect, unless the trial court ignored, misconstrued or
misinterpreted facts and circumstances, which if considered, would alter the
outcome of the case.[26] In the case at
bar, the addition or omission of these words, and the difference between the
findings of the trial court and the Court of Appeals as to where the seven
spent shells were found, are too minor and inconsequential to affect the
outcome of this case. These, even if
considered, would not overturn the established fact that petitioner was
identified as the assailant. Nothing in
the record shows that there was any inconsistency as regards the identity of
the assailant. Both private complainant
and Armando Maramba were one in pointing to petitioner as the culprit.
Petitioner interposes the defenses of denial and alibi. He denies participation in the crime claiming
that he was aboard a tricycle on his way to Calasiao, Pangasinan, when
policemen arrested him and brought him to the Dagupan Police Station. On the other hand, the victim himself
identified petitioner as his attacker which statement was corroborated by
Armando Maramba.
To be believed, denial must be buttressed by strong evidence
of non-culpability. Otherwise, it is purely self-serving and without
merit.[27] Settled is the rule that the
defense of alibi is inherently weak and crumbles in the light of positive
declarations of truthful witnesses who testified on affirmative
matters.[28] Greater weight is given to
the categorical identification of the accused by the prosecution witnesses than
to the accused's plain denial of participation in the commission of the
crime.[29] There being no strong and credible evidence adduced to overcome the
testimonies of private complainant and Armando Maramba pointing to him as the
culprit, no weight can be given petitioner’s denial.
Petitioner’s defense of alibi likewise fails. As against positive identification by
prosecution witnesses, the accused’s alibi is worthless.[30] Having been identified by two credible
witnesses, petitioner cannot escape liability.
Moreover, for alibi to prosper, it must be proven that during the
commission of the crime, the accused was in another place and that it was
physically impossible for him to be at the locus criminis.[31] Courts view the defense of alibi with
suspicion and caution not only because it is inherently weak and unreliable,
but also it can be fabricated easily.[32]
As found by the trial court, it was not physically impossible for petitioner to be at the crime
scene when the crime was committed since it only takes a ten-minute ride from
the place where he allegedly alighted from the car of one Berting Soriano to
the crime scene. We have held
that:
Alibi, the plea of having been elsewhere than at the scene
of the crime at the time of the commission of the felony, is a plausible excuse
for the accused. Let there be no mistake
about it. Contrary to the common notion,
alibi is in fact a good defense. But to
be valid for purposes of exoneration from a criminal charge, the defense of
alibi must be such that it would have been physically impossible for the person
charged with the crime to be at the locus criminis at the time of its
commission, the reason being that no person can be in two places at the same
time. The excuse must be so airtight
that it would admit of no exception.
Where there is the least possibility of accused’s presence at the crime
scene, the alibi will not hold water.[33]
Petitioner contends there was suppression of evidence when
the prosecution did not place on the witness stand Barangay Captain Dacasain of
Lasip Grande and when it failed to present a ballistic report on the seven
empty shells because both are vital evidence to prove the identity of the
assailant.
We find such contention untenable.
As to the non-presentation of Barangay Captain Dacasin, the
same does not constitute suppression of evidence. Barangay Captain Dacasin was not an
eyewitness to the shooting incident contrary to the claim of petitioner. Although he was the one who reported the
incident to the police station, he was merely informed by Armando Maramba that
the person who shot private complainant wore a “chaleko” or vest.[34] Thus, not being an eyewitness, his testimony,
even if taken, would have nothing to do with the identification of the
assailant. If he really wanted to have
Barangay Captain Dacasin take the witness stand, he could have asked the trial
court for a subpoena ad testificandum.
This, he did not do.
As regards the failure of the police to present a ballistic
report on the seven spent shells recovered from the crime scene, the same does
not constitute suppression of evidence. A
ballistic report serves only as a guide for the courts in considering the
ultimate facts of the case.[35] It would
be indispensable if there are no credible eyewitnesses to the crime inasmuch as
it is corroborative in nature.[36] The
presentation of weapons or the slugs and bullets used and ballistic examination
are not prerequisites for conviction. The corpus delicti and the positive
identification of accused-appellant as the perpetrator of the crime are more
than enough to sustain his conviction.[37] Even without a ballistic report, the positive identification by
prosecution witnesses is more than sufficient to prove accused’s guilt beyond
reasonable doubt. [38] In the
instant case, since the identity of the assailant has been sufficiently
established, a ballistic report on the slugs can be dispensed with in proving
petitioner’s guilt beyond reasonable doubt.
Petitioner’s asseveration that it is unthinkable for him to
shoot private complainant because he has no motive to harm, much less kill the
latter, he being a total stranger, deserves scant consideration. It must be stressed that motive is a state of (one’s) mind which others
cannot discern. It is not an element of the crime, and as such does not have to
be proved. In fact, lack of motive for committing
a crime does not preclude conviction. It is judicial knowledge that persons
have been killed or assaulted for no reason at all.[39] Even in the absence of a known motive, the
time-honored rule is that motive is not essential to convict when there is no
doubt as to the identity of the culprit.[40]
Motive assumes significance only where there is no showing of who the
perpetrator of the crime was.[41] In the
case at bar, since petitioner has been positively identified as the assailant,
the lack of motive is no longer of consequence.
Petitioner argues that the testimony of prosecution witness
Armando Maramba should not be given weight because the same is biased and
incredible on the ground that he is the uncle of the private complainant.
This argument does not inspire belief. The blood relationship of Armando Maramba and
private complainant would not render the former’s testimony unworthy of
belief. On the contrary, relationship could strengthen
the witnesses’ credibility, for it is unnatural for an aggrieved relative to
falsely accuse someone other than the actual culprit. Their natural interest in securing the
conviction of the guilty would deter them from implicating a person other than
the true offender.[42] It is settled
that where there is no evidence and nothing to indicate that the principal
witnesses for the prosecution were actuated by improper motive, the presumption
is that they were not so actuated and their testimonies are entitled to full
faith and credit.[43] The weight of the
testimony of witnesses is not impaired nor in anyway affected by their
relationship to the victim when there is no showing of improper motive on their
part.[44] Jurisprudence likewise holds
that if an accused had really nothing to do with a crime, it would be against
the natural order of events and of human nature, and against the presumption of
good faith, that a prosecution witness would falsely testify against
him.[45] In the case before us, aside
from petitioner’s claim that he was framed-up, there is nothing in the records
that shows that Armando Maramba had ulterior motives in testifying against
him. Necessarily, the testimony of
Armando Maramba must be given full credit.
Petitioner claims that as a navy man who is trained to kill
enemies of the state, a “protector of the people,” he could not have acted in
the manner which the prosecution pointed out.
He said it is against human experience to attempt to kill a person in
the presence of a witness and in broad daylight, and that it is preposterous
that after firing seven shots at close range, he failed to fatally hit the
private complainant. All these, he said, only point to a different
assailant.
We are not convinced.
The records show that the shooting happened at around 7:30 a.m. The fact that the shooting occurred in broad daylight does not render
its commission impossible.[46]
This Court takes notice that it is not unusual that killings are
perpetrated in front of witnesses. In
the instant case, the attempted killing was witnessed by Armando Maramba, the
driver of the tricycle which petitioner rode in going to, and in leaving, the
crime scene.
Petitioner argues that he could not have been the assailant
because it was simply impossible for him, being a navy man, not to fatally hit
private complainant after firing seven shots at close range. In effect, what he is saying is that the
bungled killing cannot be the handiwork of an experienced soldier like
him. Such an argument does not hold
water. In the case of People v.
Mamarion,[47] we brushed aside the very same argument raised by the accused
therein who was an experienced military man.
We ruled that an accused is not entitled to an acquittal simply because
of his previous, or even present, good moral character and exemplary
conduct. The fact that petitioner was a navy man -- a protector of
the people -- does not mean that he is innocent of the crime charged or that he
is incapable of doing it. This
argument fails in light of the identification made by the victim himself and by
Armando Maramba that it was petitioner who was the assailant.
Finally, petitioner submits that if ever he committed a
crime, he merely committed attempted homicide.
He maintains there was no sudden firing because the victim testified he
was observing the alleged gunman for a period of ten seconds before the latter
finally drew his .45 caliber pistol and fired at him. After the first shot, the victim was able to
run away.
The
lower court was correct in appreciating treachery in the commission of the
crime. There is treachery when
the following essential elements are present, viz: (a) at the time of the attack, the victim was
not in a position to defend himself; and (b) the accused consciously and
deliberately adopted the particular means, methods or forms of attack employed
by him.[48] The essence of treachery is
the swift and unexpected attack on an unarmed victim without the slightest
provocation on the part of the victim.[49]
It was clearly established that private complainant, while washing his
jeep, was suddenly fired upon by petitioner for no reason at all. The suddenness of the shooting and the fact that he was unarmed left
private complainant with no option but to run for his life. It is likewise apparent that petitioner
consciously and deliberately adopted his mode of attack making sure that
private complainant will have no chance to defend himself by reason of the
surprise attack. Petitioner’s claim that
the shooting was not sudden because private complainant was observing him from
the time he alighted from the tricycle is belied by the fact that private
complainant was not able to run when he was first fired upon. Though private complainant was looking at
him, the former was not forewarned by any outward sign that an attack was
forthcoming. It was only after the first
shot that he felt his life was in danger.
Having
commenced the criminal act by overt acts but failing to perform all acts of
execution as to produce the felony by reason of some cause other than his own
desistance, petitioner committed an attempted felony. Petitioner already commenced his attack with
a manifest intent to kill by shooting private complainant seven times, but
failed to perform all the acts of execution by reason of causes independent of
his will, that is, poor aim and the swiftness of the latter. Private complainant sustained a wound on the
left arm that is not sufficient to cause his death. The settled rule is that where the wound
inflicted on the victim is not sufficient to cause his death, the crime is only
attempted murder, since the accused did not perform all the acts of execution
that would have brought about death.[50]
The penalty imposed by the trial court is correct. Under Article 51 of the Revised Penal Code,
the penalty lower than two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principal in an attempted felony.
Under Article 248 of the Revised Penal Code, the penalty for murder is
reclusion perpertua to death. The penalty
two degrees lower is prision mayor. Applying the Indeterminate
Sentence Law, and there being no aggravating or mitigating circumstances, the
minimum of the penalty to be imposed should be within the range of prision
correccional, and the maximum of the penalty to be imposed should be within the
range of prision mayor in its medium period.
WHEREFORE, in view of the foregoing, the petition is DENIED. Costs against
petitioner.
SO ORDERED.
