G.R. No.

194446 April 21, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
HERMENIGILDO DELEN y ESCO BILLA, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

The accused-appellant Hermenigildo Delen y Escobilla seeks the reversal of his

conviction for child abuse under Section 10(a), Article VI of Republic Act No.
7610 and qualified rape under Article 266-A, paragraph 1 in relation to Article
266-B of the Revised Penal Code. The Regional Trial Court (RTC) of Batangas
City, Branch 1, adjudged the accused-appellant guilty of said crimes in a
Consolidated Decision1 dated January 29, 2008. The Court of Appeals affirmed
the conviction in a Decision2 dated February 17, 2010 in CA-G.R. CR.-H.C. No.
03324.

The accused-appellant was separately charged with child abuse under Section
10(a), Article VI of Republic Act No. 7610 and qualified rape in separate
informations, respectively docketed as Criminal Case Nos. 13870 and 13932,
before the RTC of Batangas City. Said crimes were alleged to have been
committed against AAA3 as follows:

[CRIMINAL CASE NO. 13870]

That on or about January 23, 2005 at around 6:00 o’clock (sic) in the evening at
[XXX] and within the jurisdiction of this Honorable Court, the above-named
accused, while armed with a hammer, without any justifiable cause, did then and
there willfully, unlawfully and feloniously commit [a] cruel act against [AAA], a 12-
year old girl, by violently striking her head with the said hammer, kicking her and
smashing her head on a wooden post, thereby causing her physical injuries,
which act debases, degrades or demeans the intrinsic worth and dignity of [AAA]
as a human being, in violation of the aforecited law.

That the aggravating circumstance of relationship is attendant in the commission

of the offense, the accused being the father of the offended party.4

[CRIMINAL CASE NO. 13932]

That on or about January 17, 2005 at around 6:00 o’clock (sic) in the morning at
[XXX] and within the jurisdiction of this Honorable Court, the above-named
accused, motivated by lust and lewd designs, through force and intimidation, did
then and there willfully, unlawfully and feloniously have carnal knowledge on one
[AAA], a 12-year old minor, against the latter’s will.

That the aggravating circumstances of minority and relationship, the victim being
then a 12-year old minor and daughter of the accused, are attendant in the
commission of the offense.5

Upon arraignment, the accused-appellant pleaded not guilty to both charges.6

On motion of the parties, the two cases were tried jointly.7

The Prosecution’s Version of Events

AAA was born on March 29, 1992 to accused-appellant and BBB.8 AAA’s parents
separated as the accused-appellant was beating BBB. AAA then lived with her
aunt until the accused-appellant took her in. In the year 2000, AAA lived in the
accused-appellant’s house.9 One day, she was awakened from her sleep when
the accused-appellant removed her shorts and panty. The accused-appellant
then removed his shorts and went on top of AAA. He inserted his penis into her
organ and told her not to create any noise because their neighbors might hear
them. He also warned AAA that he would kill her if she would report the incident.
AAA could not do anything but cry. Subsequently, at around 6:00 a.m. on January
17, 2005, AAA woke up with her legs spread apart and tied to wooden panels on
the wall. She was only wearing her upper clothing and was not wearing her
shorts and panty anymore. The accused-appellant removed his shorts and only
wore briefs. The accused-appellant then lay on top of her and began to insert his
penis into her organ, which caused her pain. While the accused-appellant was
doing said act, he told AAA not to report the incident; otherwise, he threatened to
cut her tongue and kill her. Thereafter, the accused-appellant untied her.10

On January 23, 2005, the accused-appellant asked AAA to look for a lighter.
When AAA failed to find one, the accused-appellant told her to go inside a room
in their house. There, he kicked AAA in the buttocks, hit her head with a hammer
and smashed her head on the wooden wall. She suffered injuries on her
forehead and the back of her head. Afterwards, she told the accused-appellant
that she was going to use the toilet so she was able to go out of their house. She
ran to the street and went to the house of a neighbor, Ate Annie. The accused-
appellant looked for her there so she hid under the bed. After the accused-
appellant left, AAA was brought to the house of Nanay Loleng, a neighbor of Ate
Annie. They treated AAA’s wounds and put her to sleep. When she woke up, the
barangay tanods were already at the place. They first talked to AAA then they
called the police so that the accused-appellant could be apprehended. When the
accused-appellant was arrested, AAA was brought to the police station where
she gave her statement. AAA was then taken to the hospital where she was
treated and examined by doctors.11

The Medico-Legal Certification executed by Dr. Rex B. Rivamonte and Dr.

Aristotle R. Arellano of the Batangas Regional Hospital showed that AAA
sustained the following injuries:

SURGICAL FINDINGS:

(+) contusion hematoma right parietal area.

(+) contusion hematoma left parietal area.

(+) contusion hematoma right flank area.

(+) contusion hematoma left flank area.

(+) contusion hematoma with abrasion frontal area.

(+) contusion hematoma right lumbar area.

Multiple physical injuries secondary to mauling.

OB-GYNE FINDINGS:

PHYSICAL EXAMINATION: (+) Physical injuries on time of examination.

EXTERNAL GENITALIA: well coaptated labia majora (-) pubic hair.

HYMEN: (+) complete healed laceration at 1, 3, 6, 9 o’clock position[s].

INTERNAL FINDINGS: Admits 2 fingers with ease, cervix closed, firm, uterus not
enlarge, no adnexal mass (-) tenderness.

LABORATORY RESULT: SPERM CELL DETERMINATION: No sperm cell seen.

PREGNANCY TEST: Negative.

In the opinion of the undersigned, these injuries will incapacitate or require
medical attendance for a period of less than nine (9) days barring complications;
otherwise, this period of healing will vary accordingly.12

The Defense’s Version of Events

For his part, the accused-appellant testified that he has been residing at XXX
since 1999. He lived in a house shared with his eldest brother and his family. On
January 17, 2005, he was at his house together with AAA and the family of his
brother but he left early at about 6:00 a.m. He denied that he raped AAA on said
date. He claimed that AAA might have been raped at her grandparents’ house
where she lived prior to January 17, 2005. He alleged that there was a person
with a mental defect living in said house. He further asserted that the charge of
rape was instigated by the sibling of AAA’s mother who was angry with him
because he separated from his wife. Moreover, the barangay kagawad who
lodged a complaint against him was also angry with him as he was a guard at the
cockpit and the kagawad did not want a cockpit in their barangay.13

On January 23, 2005, the accused-appellant was also at his house with AAA and
the family of his brother. He denied causing the contusions on the different parts
of AAA’s body. He stated that AAA was injured when she fell in a canal at the side
of their house and this fact was witnessed by his brother and AAA’s cousin. He
even brought AAA to the barangay health center for treatment. The accused-
appellant admitted, however, that he did hit AAA on her buttocks on January 23,
2005. He explained that he asked her to cook rice but because she played with
her playmates, the rice was overcooked.14

The Judgment of the RTC

In a Consolidated Decision dated January 29, 2008, the RTC handed down a
judgment of conviction against the accused-appellant. The trial court ruled that
AAA’s testimony against the accused-appellant was sufficiently conclusive,
logical and probable to overcome the presumption of innocence in favor of the
latter. According to the trial court, AAA’s testimony that she was physically and
sexually abused by the accused-appellant was amply corroborated by the
medical findings of Dr. Arellano and Dr. Rivamonte. As such, the trial court
concluded that the accused-appellant was indeed guilty beyond reasonable
doubt of the crimes charged. The trial court, thus, decreed:

WHEREFORE, premises considered, finding the Accused Hermenigildo Delen y

Escobilla guilty beyond reasonable doubt, as principal, of the crimes of Child
abuse (by infliction of physical injury) defined under Section 3, Article I and
penalized under Section 10, Article VI of Republic Act No. 7610 in relation to
Section 2(b) of its Implementing Rules and Regulations and rape defined and
penalized under Article 266-A and Article 266-B of the Revised Penal Code, in
relation to Republic Act 9346 he is hereby sentenced to suffer an indeterminate
sentence of imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS
and One (1) DAY of Prision Correccional, as minimum, to SIX (6) YEARS, EIGHT
(8) MONTHS and ONE (1) DAY of Prision Mayor, as maximum, and to pay the
costs, in [C]riminal [C]ase [N]o. 13870 and [the] penalty of Reclusion Perpetua, in
[C]riminal [C]ase [N]o. 13932, respectively.

Further, for the rape committed the accused is ordered to indemnify [AAA] the
sum of Seventy-Five Thousand (Php75,000.00) Pesos as civil indemnity plus the
sum of Fifty Thousand (Php50,000.00) Pesos, as moral damages, the sum of
Thirty Thousand (Php30,000.00) Pesos, as moral damages of [AAA]’s mother,
and the sum of Thirty Thousand (Php30,000.00) Pesos, as exemplary damages,
and to pay the costs.

Considering that Accused Hermenigildo Delen y Escobilla has undergone

preventive imprisonment, being a detention prisoner, and there being no
evidence to show that he is a recidivist, he shall be credited in the service of
sentence with the full time during which he has undergone preventive
imprisonment, had he agreed in writing to abide by the same disciplinary rules
imposed upon convicted prisoners, otherwise, he shall be credited only with four-
fifths (4/5) of the time during which he has undergone preventive imprisonment,
as provided for in Article 29 of the Revised Penal Code, as amended.15

The Decision of the Court of Appeals

On appeal, the Court of Appeals affirmed the above ruling of the RTC in a
Decision dated February 17, 2010. The appellate court ruled that the RTC
correctly appreciated the evidence and properly concluded that the accused-
appellant indeed committed the acts of child abuse and rape against AAA. The
appellate court likewise found AAA’s testimony straightforward, candid and clear.
In contrast, the appellate court rejected the unsubstantiated defenses of denial
and alibi put forth by the accused-appellant. The Court of Appeals disposed of
the case in this wise:

WHEREFORE, the challenged Consolidated Decision dated January 29, 2008 in

Criminal Case Nos. 13870 and 13932 is AFFIRMED with MODIFICATION, that
the moral damages awarded to the victim is INCREASED to ₱75,000.00, while
the award of moral damages in the amount of ₱30,000.00 to the victim’s mother
is DELETED.16

The Ruling of the Court

On appeal to this Court, the accused-appellant seeks the reversal of the

allegedly erroneous judgment of the trial court.

The appeal lacks merit.

The RTC unequivocally ruled that the testimony of AAA passed the test of
credibility. The Court of Appeals thereafter upheld the trial court’s assessment of
AAA’s testimony. After thoroughly reviewing the records of the present case, the
Court similarly finds worthy of credence the testimony of AAA that the accused-
appellant is guilty of physically and sexually abusing her. We, thus, find no
reason to disturb, much less overturn, the trial court’s reliance on the testimony
of AAA. Verily, in People v. Leonardo,17 the Court had occasion to reiterate that:

It is a fundamental rule that the trial court’s factual findings, especially its
assessment of the credibility of witnesses, are accorded great weight and respect
and binding upon this Court, particularly when affirmed by the Court of Appeals.
This Court has repeatedly recognized that the trial court is in the best position to
assess the credibility of witnesses and their testimonies because of its unique
position of having observed that elusive and incommunicable evidence of the
witnesses’ deportment on the stand while testifying, which opportunity is denied
to the appellate courts. Only the trial judge can observe the furtive glance, blush
of conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the
scant or full realization of an oath. These are significant factors in evaluating the
sincerity of witnesses, in the process of unearthing the truth. The appellate courts
will generally not disturb such findings unless it plainly overlooked certain facts of
substance and value that, if considered, might affect the result of the case.
(Citations omitted.)

In Criminal Case No. 13870, the RTC and the Court of Appeals found the
accused-appellant guilty beyond reasonable doubt of committing child abuse by
infliction of physical injury against AAA. Under Section 3(b), Article I of Republic
Act No. 7610,18 the term "child abuse" is defined as the maltreatment of a child,
whether habitual or not, which includes the physical abuse of a child, among
other acts.

In this case, AAA positively identified the accused-appellant as the person who
kicked her in the buttocks, hit her head with a hammer, and smashed her head
on the wall on January 23, 2005. Because of the said brutal and inhumane acts
of the accused-appellant, AAA suffered bruises and contusions in different parts
of her body. The Medico-Legal Certification of Dr. Rivamonte and Dr. Arellano
clearly reflected the fact that AAA indeed sustained contusions, coupled with a
finding that she suffered multiple physical injuries secondary to mauling.

In Criminal Case No. 13932, the accused-appellant was also found guilty beyond
reasonable doubt of qualified rape.

Article 266-A of the Revised Penal Code defines the crime of rape by sexual
intercourse as follows:

ART. 266-A. Rape, When and How Committed. — Rape is committed —

1. By a man who shall have carnal knowledge of a woman under any of the
following circumstances:

a. Through force, threat or intimidation;

b. When the offended party is deprived of reason or is otherwise unconscious;

c. By means of fraudulent machination or grave abuse of authority;

d. When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present.

Thus, for a charge of rape to prosper under the above provision, the prosecution
must prove that: (1) the offender had carnal knowledge of a woman; and (2) he
accomplished such act through force, threat, or intimidation, or when she was
deprived of reason or otherwise unconscious, or when she was under twelve
years of age or was demented.

In the instant case, the prosecution was able to establish that the accused-
appellant had carnal knowledge of AAA on January 17, 2005. AAA narrated in a
straightforward manner the harrowing details of how the accused-appellant had
sexual intercourse with her. Again, the RTC found credible and convincing AAA’s
testimony on this matter. Likewise, the Court finds no cogent reason to disbelieve
AAA’s testimony, which was corroborated by the medical findings of Dr.
Rivamonte and Dr. Arellano that the victim’s hymen had "complete healed
lacerations at 1, 3, 6, 9 o’clock position[s]." We held in People v. Oden19 that the
"eloquent testimony of the victim, coupled with the medical findings attesting to
her non-virgin state, should be enough to confirm the truth of her charges." As to
the manner by which the rape was committed, the accused-appellant’s moral
ascendancy over AAA takes the place of the force and intimidation that is
required in rape cases.20

To exculpate himself from the charges of child abuse and rape, the accused-
appellant merely denied the accusations of AAA. The Court finds that the RTC
and the Court of Appeals were correct in rejecting the accused-appellant’s bare
denials. Undeniably, the accused-appellant did not present any clear and
convincing evidence to substantiate his claims that another person with mental
defect could have raped AAA and that her injuries were caused when she fell in a
canal beside their house. The accused-appellant also failed to present any
evidence to prove that AAA was impelled by ill motive to testify against him.
Settled is the rule that where no evidence exists to show any convincing reason
or improper motive for a witness to falsely testify against an accused, the
testimony deserves faith and credit.21

The Proper Penalties

Under Article 266-B of the Revised Penal Code, the minority of a rape victim and
her relationship to the accused-appellant qualify the charge of rape in this wise:

Art. 266-B. Penalties. — x x x.

xxxx

The death penalty shall also be imposed if the crime of rape is committed with
any of the following aggravating/qualifying circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, stepparent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent of the
victim.

For the charge of rape in Criminal Case No. 13932, the qualifying circumstances
of minority and relationship attended the commission of the crime. Not only were
the said circumstances specifically alleged in the information, the same were
sufficiently proved during the trial of the case. The fact that AAA was only 12
years old when she was raped by the accused-appellant on January 17, 2005
was established by the certification22 issued by the Office of the Local Civil
Registrar of x x x, Batangas, which stated that AAA was born on March 29, 1992.
Moreover, said certification stated that AAA’s biological father is none other than
the accused-appellant Hermenigildo Delen. The accused-appellant likewise
admitted this fact when he testified in court. Still, notwithstanding the provisions
of Article 266-B of the Revised Penal Code, the RTC and the Court of Appeals
correctly held that the appropriate penalty that should be imposed upon the
accused-appellant is reclusion perpetua. This is in accordance with the
provisions of Republic Act No. 9346, which prohibits the imposition of the death
penalty.

The Court of Appeals properly upheld the trial court’s award of ₱75,000.00 as
civil indemnity and ₱30,000.00 as exemplary damages in favor of AAA, as well
as the increase of the award of moral damages in favor of AAA from ₱50,000.00
to ₱75,000.00, in accordance with current jurisprudence. The appellate court’s
removal of the separate award of moral damages in favor of AAA’s mother is also
in accordance with our ruling in People v. Alajay23 where we held that "the
prevailing jurisprudence is that the award of moral damages should be granted
jointly to both the victim and her parents. Stated differently, the parents are not
entitled to a separate award of moral damages."

For the charge of child abuse in Criminal Case No. 13870, the RTC found the
accused-appellant guilty of violating Section 10(a), Article VI of Republic Act No.
7610, which states:

SEC. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other
Conditions Prejudicial to the Child’s Development. –

(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the child’s
development including those covered by Article 59 of Presidential Decree No.
603, as amended, but not covered by the Revised Penal Code, as amended,
shall suffer the penalty of prision mayor in its minimum period. (Emphasis ours.)

The Court of Appeals upheld the ruling of the RTC, which imposed against the
accused-appellant an indeterminate sentence of imprisonment ranging from 4
years, 2 months and 1 day of prision correccional, as minimum, to 6 years, 8
months and 1 day of prision mayor, as maximum. The trial court imposed the
above penalty as it found no modifying circumstance that attended the
commission of the aforestated crime charged.1awp++i1

The Court, however, disagrees. We find that the penalty imposed by the trial
court needs to be modified since, as previously discussed, the alternative
circumstance of relationship, i.e., that the accused-appellant is the father of AAA,
has been duly established by the prosecution.

In this case, the imposable penalty is prision mayor minimum, the range of which
is from 6 years and 1 day to 8 years. In the imposition of the penalty herein,
Section 31(c), Article XII of Republic Act No. 761024 expressly provides that the
penalty provided therein shall be imposed in its maximum period when the
perpetrator is a parent of the victim. Now then, applying the Indeterminate
Sentence Law and taking into consideration the circumstance of relationship, the
maximum term of the sentence shall be taken from the maximum period of
prision mayor minimum, which is 7 years, 4 months and 1 day to 8 years. The
minimum term of the sentence shall be taken from the penalty next lower in
degree, which is prision correccional maximum, the range of which is from 4
years, 2 months and 1 day to 6 years. Thus, in Criminal Case No. 13870,
considering the gravity of the physical abuse committed against AAA, the Court
imposes upon the accused-appellant the indeterminate sentence of
imprisonment ranging from 6 years of prision correccional, as minimum, to 8
years of prision mayor, as maximum.

WHEREFORE, the Court AFFIRMS with MODIFICATIONS the Decision dated

February 17, 2010 of the Court of Appeals in CA-G.R. CR.-H.C. No. 03324. The
accused-appellant Hermenigildo Delen y Escobilla is hereby sentenced as
follows:

1. In Criminal Case No. 13932, the accused-appellant is found GUILTY beyond

reasonable doubt of one count of qualified rape and is sentenced to suffer the
penalty of reclusion perpetua without eligibility for parole, in lieu of death. The
accused-appellant is ORDERED to pay AAA ₱75,000.00 as civil indemnity,
₱75,000.00 as moral damages, and ₱30,000.00 as exemplary damages, plus
legal interest on all damages awarded at the legal rate of 6% from the date of
finality of this Decision.

2. In Criminal Case No. 13870, the accused-appellant is found GUILTY beyond

reasonable doubt of committing child abuse in violation of Section 10(a), Article
VI of Republic Act No. 7610 and is sentenced to suffer imprisonment ranging
from 6 years of prision correccional, as minimum, to 8 years of prision mayor, as
maximum.

Costs against the accused-appellant.

SO ORDERED.

G.R. No. 208760 April 23, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
FLORO BUBAN BARCELA, Accused-Appellant.

DECISION

MENDOZA, J.:

This is an appeal from the March 19, 2013 Decision1 of the Court of Appeals
(CA) in CA-G.R. CR-HC No. 04961, which affirmed with modifications the
January 6, 2011 Decision2 of the Regional Trial Court, Branch 93, San Pedro,
Laguna (RTC), in Criminal Case Nos. 5517-SPL, 5526-SPL and 5527-SPL,
finding accused-appellant Floro B. Barcela (Barcela) guilty beyond reasonable
doubt of Qualified Rape committed against AAA,3 and of Qualified Rape by
Sexual Assault and Violation of Republic Act (R.A.) No. 7610 and Acts of
Lasciviousness, committed against BBB.4

The Facts

Barcela was charged with the following crimes: 1] Qualified Rape, docketed as
Crim. Case No. 5517-SPL; 2] Violation of Article 266-A(2) in relation to R.A. No.
7610, docketed as Crim. Case No. 5526-SPL; and 3] Violation of R.A. No. 7610
(Acts of Lasciviousness), docketed as Crim.

Case No. 5527-SPL, in three (3) separate Informations which read:

Crim. Case No. 5517-SPL

That sometime in the year 2002, in the Municipality of San Pedro, Province of
Laguna, Philippines, and within the jurisdiction of this Honorable Court, accused
being the stepfather of AAA by means of force and intimidation, did then and
there willfully, unlawfully and feloniously have carnal knowledge with AAA, a
minor, nine (9) years of age, against her will and to her damage and prejudice.

The crime is qualified by minority and relationship between the offender and
offended party.
CONTRARY TO LAW.

Crim. Case No. 5526-SPL

That on or about November 12, 2004, in the Municipality of San Pedro, Province
of Laguna, Philippines, and within the jurisdiction of this Honorable Court,
accused being then the stepfather of BBB, did then and there willfully, unlawfully
and feloniously commit sexual assault and/or subject to sexual abuse the latter
by inserting his finger into the genital or private part of the said BBB, a minor,
fourteen (14) years of age, against her will and consent, which act being
detrimental to her normal growth and development.

CONTRARY TO LAW.

Crim. Case No. 5527-SPL

That sometime on 2003 and subsequent thereto, in the Municipality of San

Pedro, Province of Laguna, Philippines, and within the jurisdiction of this
Honorable Court, said accused did then and there willfully, unlawfully and
feloniously commit acts of lasciviousness upon his stepdaughter BBB, a minor,
fourteen (14) years of age, by touching the private part of the said minor, against
the latter’s will and consent, which act is detrimental to the normal growth and
development of the said minor child.

CONTRARY TO LAW. (Underscoring supplied)

Version of the Prosecution

The prosecution’s version of the events was succinctly summarized by the Office
of the Solicitor General (OSG) in its Brief5 as follows:

Private complainants BBB and AAA were living, along with the appellant, their
mother, grandmother and sister in a two-storey house where all of the family
members sleep together in one room in San Pedro, Laguna, because the other
rooms [were] being rented to other people. AAA was seven (7) years old when
her stepfather, appellant Barcela, committed the despicable by sexually abusing
her. She was lying on the floor sleeping one early morning in 2002, when she
was awakened and noticed that her stepfather lifted her clothes and removed her
shorts. Appellant then placed his hand on his organ as AAA lay still with her
hands on the floor shocked by what was happening. Appellant successfully
inserted his penis inside complainant AAA’s vagina. While committing the bestial
act, appellant threatened her not to tell anyone what he was doing to her,
otherwise he would kill her.

Her elder sister BBB also suffered the same horrible fate. On 12 November 2004
at around 3:00 o’clock in the morning, appellant Barcela made a similar sexual
assault upon BBB who was only fourteen (14) years at that time. It happened
while BBB was sleeping in one room with her stepfather, mother and other sister.
Appellant was lying at her right side. Suddenly, appellant lifted her skirt, removed
her underwear and inserted his finger inside her vagina. After accomplishing the
atrocious act, appellant threatened to kill her if she [would] disclose to anyone
what happened to her. BBB was very afraid because of the threat that she
pretended to be asleep after being raped. On that same night, BBB also saw her
stepfather molesting her sister AAA. BBB also testified that prior to being raped in
2004, appellant had been regularly touching her private organ.

AAA informed her mother, grandmother and her sister BBB of what happened to
her. Sadly, her mother did not believe her but her grandmother and sister BBB
(who also suffered the same fate) believed her. BBB then informed her
classmate, teacher and school principal of the grim experience she and her sister
underwent in the hands of her stepfather. Her grandmother was summoned by
the principal and, together, they reported to the police the rape incidents. In order
to protect herself, AAA stayed at the "Kanlungan" shelter. As a result of the
loathsome episode in their lives, AAA and BBB both felt afraid, ashamed and
aggrieved.

Private complainants were eventually examined by Dr. Roy Camarillo, a medico-

legal officer of the Philippine National Police. In his medico-legal report, he
concluded that BBB sustained a shallow healing laceration in her hymen caused
by the insertion of a hard object which may be a penis, finger or a flat hard
object. As regards the examination conducted on AAA, he concluded that there
was no evident injury at the time of the examination but testified that the injury
that AAA incurred may have totally healed as the rape occurred two (2) years
from the time of the examination.6

Version of the Defense

Barcela denied the accusations and alleged the following in his Brief7 to
substantiate his claim of innocence:

Accused Floro B. Barcela is the common law husband of the private

complainants’ mother, CCC. They all resided at the two-storey house of CCC’s
mother in San Vicente, San Pedro, Laguna.

On November 12, 2004, the private complainants were sleeping beside their
mother CCC and their half-sister DDD, herein accused-appellant’s daughter with
CCC. He did not rape AAA. Neither did he insert his finger inside BBB’s vagina,
nor threatened either of the two (2) private complainants. He knew of no reason
why the private complainants would accuse him of such crimes charged against
him.8

Ruling of the RTC

In its January 6, 2011 Decision, the RTC found Barcela guilty as charged. In its
assessment, the testimonies of AAA and BBB have successfully met the test of
credibility and were found to have been solely motivated by the desire to obtain
justice for the wrong done against them.

The denial proffered by Barcela must then yield to the positive testimonies of the
offended parties. The RTC explained:

The culpability of accused FLORO BUBAN BARCELA was clearly established by

private complainants AAA and BBB. In this regard, there is nothing in the records
to show that their testimony was motivated by any other reason other than to
bring to justice the perpetrator of the crimes against them. Indeed, the Court finds
that there is no evidence to show that AAA and BBB were prejudiced against
accused FLORO BUBAN BARCELA that they would impute to him the
commission of the crimes charged if he was not guilty thereof. It must be noted
that not only were the testimony of AAA and BBB convincing and unequivocal,
the same were also backedup by the physical evidence, which is a mute but
eloquent manifestation of truth.9

The dispositive portion of the RTC decision reads:

WHEREFORE, the Court hereby renders judgment:

1) Finding accused FLORO BUBAN BARCELA GUILTY beyond reasonable

doubt of Rape in Criminal Case No. 5517-SPL and hereby sentencing him to
suffer the penalty of Reclusion Perpetua. In addition, accused FLORO BUBAN
BARCELA is ORDERED to pay the victim the amounts of ₱75,000.00 as civil
indemnity, ₱50,000.00 as moral damages and ₱30,000.00 as exemplary
damages.
2) Finding accused FLORO BUBAN BARCELA guilty beyond reasonable doubt
of the crime of Violation of Article 266-A (2) in relation to R.A. 7610 in Criminal
Case No. 5526-SPL and hereby sentencing him to suffer the penalty of
imprisonment from Two (2) years, Four (4) Months and One (1) day of prision
correccional as minimum to EIGHT (8) YEARS and ONE (1) DAY of prision
mayor as maximum and to pay the victim the amounts of ₱30,000.00 as civil
indemnity, ₱30,000.00 as moral damages and ₱30,000.00 as exemplary
damages

3) Finding accused FLORO BUBAN BARCELA guilty beyond reasonable doubt

of the crime of Violation of R.A. No. 7610 (Acts of Lasciviousness) in Criminal
Case No. 5527-SPL and hereby sentencing him to suffer the penalty of
imprisonment from EIGHT (8) YEARS and ONE (1) DAY of prision mayor as
minimum to 17 years, 4 months and 1 day of reclusion temporal as maximum
and to pay the victim the amounts of ₱30,000.00 as civil indemnity, ₱30,000.00
as moral damages and ₱30,000.00 as exemplary damages.

SO ORDERED.10

Feeling aggrieved, Barcela appealed the RTC judgments of conviction before the
CA.

The Ruling of the CA

On appeal, the CA affirmed the trial court’s finding of Barcela’s guilt of the crimes
charged. The appellate court lent credence to the testimonies of AAA and BBB,
declaring the same to be credible and sufficient to sustain the conviction. It ruled
that the crime of penile rape committed against AAA and that of rape by sexual
assault committed against BBB were qualified by the special qualifying
circumstances of minority and the relationship between the offender and the
offended party because Barcela was the common-law husband of the victims’
mother. The dispositive portion of the decision reads:

WHEREFORE, premises considered, the assailed RTC

Decision dated January 06, 2011 is hereby AFFIRMED with

MODIFICATIONS:

1. In Criminal Case No. 5517-SPL (Qualified Rape), Floro Barcela y Buban is

hereby sentenced to suffer the penalty of reclusion perpetua, without eligibility of
parole. Accused-appellant is ordered to pay AAA ₱75,000.00 as civil indemnity,
₱75,000.00 as moral damages and ₱30,000.00 as exemplary damages.

2. In Criminal Case No. 5526-SPL (Qualified Sexual Assault in relation to RA

7610), accused-appellant is hereby sentenced to suffer the indeterminate penalty
of ten (10) years of prision mayor, as minimum to seventeen (17) years and four
(4) months of reclusion temporal, as maximum. He is ordered to pay BBB
₱30,000 as civil indemnity, ₱30,000.00 as moral damages and ₱30,000.00 as
exemplary damages.

3. In Criminal Case No. 5527-SPL (Acts of Lasciviousness in relation to RA

7610), accused-appellant is hereby sentenced to suffer the indeterminate penalty
of eight (8) years and one (1) day of prision mayor as minimum to seventeen (17)
years, four (4) months and one (1) day of reclusion temporal, as maximum.
Consistent with the prevailing jurisprudence, he is ordered to pay a fine of
₱15,000.00 and to pay BBB of the amounts of ₱20,000.00 as civil indemnity,
₱15,000.00 as moral damages and ₱15,000.00 as exemplary damages.

SO ORDERED.11

The Issue

Insisting on his innocence, Barcela filed the present appeal and raised this lone
assignment of error:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF THE OFFENSES CHARGED ALTHOUGH HIS GUILT WAS
NOT PROVEN BEYOND REASONABLE DOUBT.

The Court’s Ruling

The appeal is devoid of merit.

Barcela faults the courts a quo for giving undue faith and credence to the
testimonies of AAA and BBB, contending that the same were laced with
inconsistencies and improbabilities that tainted the veracity of their charges. He
avers that the lack of concrete prosecution evidence showing any unusual
behavior exhibited by AAA and BBB after the alleged commission of the crimes,
rendered said victims’ complaints dubious. Barcela points out that it is incredible
that AAA and BBB would still sleep with him in the same room despite the fact
that they had been previously sexually assaulted by him. He argues that the
absence of hymenal lacerations, healed or otherwise, in the vagina of AAA and
the presence of a mere shallow laceration in the vagina of BBB, together with the
inconsistencies in their testimonies, effectively belied their charges against him.

The Court, however, is not at all swayed by the contentions of Barcela. His
arguments boil down to the credibility of the victims’ testimonies and the weight
and sufficiency of the prosecution evidence.

Jurisprudence is replete with cases where the Court ruled that questions on the
credibility of witnesses should best be addressed to the trial court because of its
unique position to observe that elusive and incommunicable evidence of the
witnesses’ deportment on the stand while testifying which is denied to the
appellate courts.12 The trial judge has the advantage of actually examining both
real and testimonial evidence including the demeanor of the witnesses. Hence,
the judge’s assessment of the witnesses’ testimonies and findings of fact are
accorded great respect on appeal. In the absence of any substantial reason to
justify the reversal of the trial court’s assessment and conclusion, as when no
significant facts and circumstances are shown to have been overlooked or
disregarded, the reviewing court is generally bound by the former’s findings.13
The rule is even more stringently applied if the appellate court has concurred with
the trial court.

After a careful review of the records of this case, the Court finds no cogent
reason to depart from the findings of the RTC and the CA, together with their
respective calibration of the credibility of the private complainants. AAA and BBB,
guileless and innocent in the ways of the flesh, categorically narrated in detail
their ghastly ordeal in the hands of Barcela. Their respective stories bear the
stamp of truth and candor. There is neither cause nor reason to withhold
credence from their testimonies.

Moreover, Barcela did not establish any ill motive that could have compelled the
private complainants to falsely accuse him of committing the crimes charged.
The failure of Barcela to effectively cite any plausible reason for the private
complainants’ accusations, all the more strengthens the latter’s credibility and the
validity of their charges. Besides, no sane woman, least of all a child, would
concoct a story of defloration, allow an examination of her private parts and
subject herself to public trial or ridicule if she was not, in truth, a victim of rape
and impelled to seek justice for the wrong done to her.14 The Court finds it hard
to believe that AAA and BBB would fabricate a tale of defilement and make public
knowledge that Barcela robbed them of their virtue and chastity, dragging
themselves and their family to a lifetime of agony and shame, unless motivated
by a genuine desire to obtain redress for the foul deed forced upon them.

Barcela claims that it is incredible that: 1] AAA did not cry out loud when he
allegedly inserted his penis into her tight vagina; 2] BBB just went back to sleep
after he allegedly inserted his finger into her vagina; and 3] private complainants
still opted to sleep next to him despite the incidents. To him, these are contrary to
human nature and could not be the actuations of abused young girls.

The Court is not convinced. Behavioral psychology teaches us that, even among
adults, people react to similar situations differently, and there is no standard form
of human behavioral response when one is confronted with a startling or frightful
experience.15 Let it be underscored that these cases involve victims of tender
years, and with their simple, unsophisticated minds, they must not have fully
understood and realized at first the repercussions of the contemptible nature of
the acts committed against them. This Court has repeatedly stated that no
standard form of behavior could be anticipated of a rape victim following her
defilement, particularly a child who could not be expected to fully comprehend
the ways of an adult.16 At any rate, it is not inconceivable that the victims
continuously slept with Barcela despite the sexual molestations as it was
undisputed that everybody in the victims’ family slept in one room.

The absence of hymenal laceration on AAA and the finding of a shallow vaginal
laceration on BBB are not fatal to the cause of the prosecution. The Court has
repeatedly held that the presence of hymenal rapture, vaginal laceration or any
genital injury is not indispensable because the same is not an element of the
crime of rape.17 In the same breath, an intact hymen does not negate the finding
that the victim was raped.18 The alleged inconsistencies in the testimonies of
AAA and BBB cannot exculpate him either. Obviously, the inconsistencies
referred to are trivial and only pertained to inconsequential matters that do not
alter the essential fact of the commission of rape. What is decisive in a rape
charge is that the commission of rape has been sufficiently proven.
Inconsistencies and discrepancies as to minor matters which are irrelevant to the
elements of the crime cannot be considered grounds for acquittal.19

In stark contrast to the convincing narration of facts by AAA and BBB are the
bare-faced and shaky defenses of denial and alibi proffered by Barcela.
Jurisprudence has decreed that alibi and denial cannot prevail over the positive
and categorical testimony of the complainant and her identification of the
accused.20 Alibi is an inherently weak defense, which is viewed with suspicion
because it can easily be fabricated.21 Denial is an intrinsically weak defense
which must be buttressed with strong evidence of non-culpability to merit
credibility.22 Here, not a shred of competent proof was adduced by Barcela to
corroborate his denial and alibi as they are only supported by his self-serving
testimony. Hence, they do not merit any evidentiary value.

The Court will now determine the specific crimes committed by Barcela with the
corresponding penalties to be imposed and the appropriate damages to be
awarded.

Criminal Case Nos. 5517-SPL and 5526-SPL

The statutory provisions relevant to the present review are Article 266-A and
Article 266-B of the Revised Penal Code (RPC), which state:

Article 266-A. Rape; When and How Committed. - Rape is committed -

1. By a man who shall have carnal knowledge of a woman under any of the
following circumstances:

a. Through force, threat, or intimidation; xxx

d. When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present.

2. By any person who, under any of the circumstances mentioned in paragraph 1

hereof, shall commit an act of sexual assault by inserting his penis into another
person's mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person.

ART. 266-B. Penalties. – Rape under paragraph 1 of the next preceding article
shall be punished by reclusion perpetua.

xxxx

The death penalty shall also be imposed if the crime of rape is committed with
any of the following aggravating/qualifying circumstances:

xxxx

1. when the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law-spouse of the parent of the
victim.

xxxx

Rape under paragraph 2 of the next preceding article shall be punished by

prision mayor.

xxxx

Reclusion temporal shall also be imposed if the rape is committed with any of the
ten aggravating/qualifying circumstances mentioned in this article. (Emphases
supplied)

To sustain a conviction for qualified rape, the following elements must concur: a)
the victim is a female over 12 years but under 18 years of age; b) the offender is
a parent, ascendant, step parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent of the
victim; and c) the offender has carnal knowledge of the victim either through
force, threat or intimidation; or when she was deprived of reason or is otherwise
unconscious; or by means of fraudulent machinations or grave abuse of
authority.23

In Criminal Case No. 5517-SPL, the prosecution proved that AAA was only 7
years old when the penile rape was committed in 2002. Her birth certificate
showed that she was born on September 24, 1994. The prosecution was also
able to establish the fact of sexual intercourse between Barcela and AAA. The
Court notes that AAA told her story by words and demonstrations using male and
female dolls. AAA recounted that while she was lying on the floor of their house,
Barcela lifted her clothes and removed her shorts; that he inserted his penis into
her vagina; that she felt pain; and that he warned her not to tell the incident to
anyone, otherwise, he would kill her. The straightforward narration of AAA of what
transpired, and her categorical identification of Barcela as the malefactor, sealed
the case for the prosecution.

In the crime of rape, the concurrence of the minority of the victim and her
relationship with the offender is a special qualifying circumstance and raises the
penalty to the supreme penalty of death. It is essential that this circumstance
must be alleged in the criminal complaint or information and must be proved
conclusively and indubitably as the crime itself; otherwise, the crime shall be
considered simple rape warranting the imposition of the lower penalty of
reclusion perpetua.24
The aforesaid qualifying circumstance, however, could not be appreciated in
Criminal Case No. 5517-SPL. To begin with, AAA was under 12 years old (only 7
years old) when she was raped in 2002. More importantly, the prosecution failed
to prove the allegation in the information that Barcela was the step-father of AAA
at the time of the commission of the crime. It bears stressing that a stepfather-
stepdaughter relationship presupposes a legitimate relationship, which in this
case is the valid marriage between Barcela and the natural mother of AAA (also
of BBB), and the best evidence to prove the same is the marriage contract.25
Nowhere in the record, though, does it show that such certificate of marriage was
submitted in evidence by the prosecution. In People v. Manggasin,26 the Court
held that the qualifying circumstance was not proved because there was no proof
of the allegation that the accused-appellant was the stepfather of the complainant
as the evidence showed that he was not married to the complainant’s mother.

Being regarded as the "tatay," Barcela had gained such moral ascendancy over
AAA and BBB that any resistance normally expected from girls their age could
not have been put up by them. His moral ascendancy and influence over them
substituted for actual physical violence and intimidation as an element of rape.
This made them easy prey for his sexual advances. Barcela’s moral and physical
dominion of AAA and BBB are sufficient to cow them into submission to his
beastly desires. No further proof is needed to show lack of consent of the victims
to their own defilement. Further, record shows that threat and intimidation were
indeed employed by Barcela to consummate the purpose which he had in mind.
The threat of death he communicated to AAA and BBB produced fear in their
minds which made them yield to his bestial demands. In any event, the
prosecution need not prove that Barcela employed force, threat or intimidation
against AAA because rape is committed when the offender had carnal knowledge
of the offended party who is under 12 years of age.

The Court likewise finds convincing the testimony of BBB, which clearly
established that at around 3:00 A.M. of November 12, 2004, she was awakened
when Barcela, who was then sleeping next to her, lifted her skirt, removed her
panty and, thereafter, inserted his finger into her vagina; and that she suffered
pain during the insertion but could not shout for fear that Barcela would kill her.
The Court notes that she consistently and without hesitation pointed to Barcela
as the person who sexually molested her. The prosecution also established that
she was only 14 years old when she was sexually molested as evidenced by her
birth certificate.

Taken in this light, the Court affirms Barcela’s conviction in Criminal Case No.
5526-SPL of rape by sexual assault under Art. 266- A, par. 2 of the RPC, but not
in its qualified form. The special qualifying circumstances of minority and
relationship were likewise not present. While the minority of BBB was duly
proven, the allegation of stepfather-stepdaughter relationship was not
established.

Although it was shown during the trial that Barcela was the common-law spouse
or live-in partner of the mother of victims AAA and BBB, this fact would not alter
the crimes in their qualified form inasmuch as the two separate informations did
not specifically allege such relationship as a qualifying circumstance. Otherwise,
he would be deprived of his right to be informed of the charge lodged against
him.27 The relationship alleged in the informations is different from that actually
proven. Verily, the CA erred in convicting Barcela of qualified rape in Criminal
Case No. 5517-SPL and qualified rape by sexual assault in Criminal Case No.
5526-SPL.

There being no qualifying circumstance attendant to the commission of rape in

Criminal Case No. 5517-SPL, Barcela should be convicted of simple statutory
rape and should suffer the penalty of reclusion perpetua. The award of damages
should also be modified in line with prevailing jurisprudence.28 AAA is thus
awarded the amounts of ₱50,000.00 as civil indemnity; ₱50,000.00 as moral
damages; and ₱25,000.00 as exemplary damages.

In Criminal Case No. 5526-SPL, Barcela should be convicted with simple rape by
sexual assault, instead with the penalty of prision mayor as provided in Art. 266-B
par. 7 of the RPC. Considering that there was neither aggravating nor mitigating
circumstance, the penalty should be imposed in its medium period pursuant to
Article 64(l)29 of the RPC. Applying the Indeterminate Sentence Law, Barcela
should be sentenced to an indeterminate penalty the minimum of which is prision
correccional (6 months and 1 to 6 years) and the maximum of which is within the
range of prision mayor, in its medium period (8 years and 1 day to 10 years).
More specifically, the Court imposes the penalty ranging from five (5) years of
prision correccional, as minimum, to ten (10) years of prision mayor, as
maximum. The Court sustains the CA in awarding ₱30,000.00 as civil indemnity,
₱30,000.00 as moral damages; and ₱30,000.00 as exemplary damages being
consistent with prevailing jurisprudence.30

Criminal Case No. 5527-SPL

The Court also upholds Barcela’s conviction in Criminal Case No. 5527-SPL of
Acts of Lasciviousness committed against a child under Section 5(b), Article III of
R.A. No. 7610, which reads:

SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion
or influence of any adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in prostitution and other
sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall
be imposed upon the following:

xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual abuse: x x x. (Italics
supplied)

The elements of sexual abuse under the above provision are as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct;

2. The said act is performed with a child exploited in prostitution or subjected to

other sexual abuse; and

3. The child whether male or female, is below 18 years of age.31

Here, it was proven with certitude that Barcela had repeatedly molested BBB by
regularly touching her vagina since 2003 when she was still in Grade III. This act
is covered by the definition of "lascivious conduct" under Section 2 (h) of the
Rules and Regulations on the Reporting and Investigation of Child Abuse Cases
promulgated to implement R.A. No. 7610:

(h) "Lascivious conduct" means the intentional touching, either directly or through
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of any person,
whether of the same or opposite sex, with intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or private area of a person.

The circumstance of relationship, Barcela being the common-law husband of

BBB’s mother, cannot be considered as an ordinary aggravating circumstance to
increase the imposable penalty. While it is true that the alternative circumstance
of relationship is always aggravating in crimes against chastity32 (such as Acts of
Lasciviousness), regardless of whether the offender is a relative of a higher or
lower degree of the offended party, it is only taken into consideration under Article
15 of the Revised Penal Code "when the offended party is the spouse,
ascendant, descendant, legitimate, natural or adopted brother or sister, or
relative by affinity in the same degree of the offender." The relationship between
Barcela and BBB is not covered by any of the relationships mentioned.1âwphi1

Considering that no aggravating or mitigating circumstance is present, the

penalty should be imposed in its medium period.33 Applying the Indeterminate
Sentence Law, Barcela should be sentenced to an indeterminate penalty the
minimum of which is prision mayor in its medium period to reclusion temporal in
its minimum period (8 years and 1 day to 14 years and 8 months) and the
maximum of which is within the range of reclusion temporal in its medium period
to reclusion perpetua, in its medium period (17 years, 4 months and 1 day to 20
years). Thus, the CA is correct in imposing the penalty of 8 years and 1 day of
prision mayor, as minimum, to 17 years, 4 months and 1 day of reclusion
temporal, as maximum.1âwphi1 Likewise, the award of ₱20,000 as civil
indemnity; ₱15,000.00 as moral damages; ₱15,000.00 as exemplary damages;
and the fine of ₱15,000.00, are proper.34

WHEREFORE, the Court AFFIRMS with MODIFICATION the March 19, 2013
Decision of the Court of Appeals in CA-G.R. CR-HC No. 04961, which should
read:

1. In Criminal Case No. 5517-SPL, finding accused-appellant Floro Buban

Barcela GUILTY beyond reasonable doubt of the crime of Simple Statutory Rape
under subparagraph ( d) of Article 266-A, paragraph 1 of the Revised Penal
Code, as amended, the Court sentences him to suffer the penalty of reclusion
perpetua, and to pay AAA the amount of Fifty Thousand Pesos (₱50,000.0 ) as
civil indemnity; Fifty Thousand Pesos (₱50,000.00) as moral damages, and Thirty
Thousand Pesos (₱30,000.00) as exemplary damages.

2. In Criminal Case No. 5526-SPL, finding accused-appellant Floro Buban

Barcela GUILTY beyond reasonable doubt of the crime of Simple Rape by
Sexual Assault under Article 266-A, paragraph 2 of the Revised Penal Code, as
amended, the Court sentences him to suffer the penalty of five (5) years of
prision correccional, as minimum, to ten (10) years of prision mayor, as
maximum; and to pay AAA in the amount of Thirty Thousand Pesos (₱30,000.00)
as civil indemnity; Thirty Thousand Pesos (₱30,000.00) as moral damages; and
Thirty Thousand Pesos (₱30,000.00) as exemplary damages.

3. In Criminal Case No. 5527-SPL, finding the accused-appellant Floro Buban

Barcela GUILTY of the crime of Acts of Lasciviousness in relation to R.A. No.
7610, the Court 1 sentences him to suffer the indeterminate penalty of eight (8)
years and !one (1) day of prision mayor as minimum to seventeen (17) years,
four (4) months and one (1) day of reclusion temporal, as maximum; and to pay
the amount of Fifteen Thousand Pesos (Pl5,000.00) as fine; and to pay BBB the
amounts of Twenty Thousand Pesos (₱20,000.00) as civil indemnity; Fifteen
Thousand Pesos (₱15,000.00) as moral damages; and ₱15,000.00 as exemplary
damages, consistent with prevailing jurisprudence.

SO ORDERED.

G.R 181409 Intestate Estate of Gonzales vs People--- SEE DIGEST

PEOPLE V. JUGUETA G.R. No. 202124 April 5, 2016 Murder, Attempted

Murder

FACTS:

Evidence adduced show that the family of Norberto Divina were all lying down
side by side about to sleep on June 6, 2002 at around 9:00 o’clock in the
evening, when suddenly their wall made of sack was stripped off by appellant
and his companions.

They ordered him to go out of their house and when he refused despite his plea
for mercy, they fired at them successively and indiscriminately, having hit and
killed his two daughters, Mary Grace Divina and Claudine who were 13 years old
and 3 ½ years old respectively.

In Criminal Case No. 7698-G, appellant was charged with Double Murder,
defined and penalized under Article 248 of the Revised Penal Code.

In Criminal Case No. 7702-G, appellant, together with Gilbert Estores and Roger
San Miguel, was charged with Multiple Attempted Murder.

However, based on the sworn statement of one Danilo Fajarillo, the Provincial
Prosecutor found no prima facie case against Gilbert Estores and Roger San
Miguel.
Appellant was then convicted by the trial court of Double Murder and Multiple
Attempted Murder.

Aggrieved by the trial court’s judgments, appellant appealed to the CA, which
rendered a Decision affirming appellant’s conviction for the crimes charged.

ISSUE:

Whether the appellant is guilty of the crimes charged.

RULING:

Murder is defined under Article 248 of the Revised Penal Code as the unlawful
killing of a person, which is not parricide or infanticide, attended by
circumstances such as treachery or evident premeditation.

The trial court correctly ruled that appellant is liable for murder because treachery
attended the killing of Norberto’s two children.

Minor children, who by reason of their tender years, cannot be expected to put up
a defense. When an adult person illegally attacks a child, treachery exists.

As to the charge of multiple attempted murder, the last paragraph of Article 6 of

the Revised Penal Code states that a felony is attempted when the offender
commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance.

In this case, the prosecution has clearly established the intent to kill on the part of
appellant as shown by the use of firearms, the words uttered during, as well as
the manner of, the commission of the crime.

The Court quoted with approval the trial court’s finding that appellant is liable for
attempted murder.

Furthermore, the Court notes that both the trial court and the CA failed to take
into account dwelling as an ordinary, aggravating circumstance, despite the fact
that the Informations in Criminal Case Nos. 7698-G and 7702-G contain sufficient
allegations to that effect.

In People v. Agcanas, the Court stressed that “[i]t has been held in a long line of
cases that dwelling is aggravating because of the sanctity of privacy which the
law accords to human abode. He who goes to another’s house to hurt him or do
him wrong is more guilty than he who offends him elsewhere.” Dwelling
aggravates a felony where the crime is committed in the dwelling of the offended
party provided that the latter has not given provocation therefor.

In view of the attendant ordinary aggravating circumstance, the Court must

modify the penalties imposed on appellant.

In view of the attendant ordinary aggravating circumstance, the Court must

modify the penalties imposed on appellant. Murder is punishable by reclusion
perpetua to death, thus, with an ordinary aggravating circumstance of dwelling,
the imposable penalty is death for each of two (2) counts of murder.

However, pursuant to Republic Act (RA) No. 9346, proscribing the imposition of
the death penalty, the penalty to be imposed on appellant should be reclusion
perpetua for each of the two (2) counts of murder without eligibility for parole.

With regard to the four (4) counts of attempted murder, the penalty prescribed for
each count is prision mayor. With one ordinary aggravating circumstance, the
penalty should be imposed in its maximum period.

G.R. No. 211159-- mitigating circumstance

PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,

vs.
MARCELINO OLOVERIO, Accused-appellant.

DECISION

LEONEN,J.:

Passion and obfuscation as a mitigating circumstance need not be felt only in the
seconds before the commission of the crime. It may build up and strengthen over
time until it can no longer be repressed and will ultimately motivate the
commission of the crime.
This is a review of the Decision1 dated January 29, 2013 of the Court of Appeals
which affirmed the conviction of accused-appellant Marcelino Oloverio (Oloverio)
of murder and sentenced him to reclusion perpetua and the payment of civil
indemnity and damages.

An Information was filed charging Oloverio with the crime of murder.2 The
Information reads:

That at around 2:00 o’clock in the afternoon of October 2, 2003, at Brgy. Belen,
Palompon, Leyte, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused met the victim, DOLFO GULANE, while the latter was
walking on his lonesome, and with treachery, did then and there willfully,
unlawfully and feloniously, stab the said victim using a sharp-pointed bolo, which
the accused has provided for the purpose, thereby hitting and inflicting mortal
wounds on the different parts of the body of the aforesaid victim causing his
instantaneous death.

CONTRARY TO LAW.3

Oloverio was arraigned on January 25, 2005, where he pleaded not guilty. Trial
on the merits ensued.4

According to the prosecution, on October 2, 2003, at around 3:00 p.m., Rudipico

Pogay (Pogay) and Dominador Panday (Panday) saw Rodulfo Gulane walking
about five (5) meters away from them with Oloverio trailing behind him. Oloverio
allegedly tapped Gulane’s right shoulder and hacked him on the chest and
extremities with a bolo until Gulane collapsed on the ground. Oloverio then
allegedly took Gulane’s money from his pocket.5

Pogay heard Oloverio shouting the words, "Patay na ang datu sa Brgy. San
Pablo!" ("The rich man in San Pablo is already dead!") Gulane managed to tell
Oloverio, "Man luba ka man, Ling?" ("Ling, why did you stab me?") After, Gulane
died. Panday proceeded to inform Gulane’s family of the incident.6

In his defense, Oloverio alleged that at the time and day of the incident, Gulane
had been accusing him of having an incestuous relationship with his mother. He
allegedly kept his cool and told Gulane to go home, but the latter continued to
mock him by asking in a loud voice, "How many times did you have sexual
intercourse with your mother?" He allegedly asked Gulane to go home again but
the latter angrily replied, "Who are you to tell me to go home?"7
Gulane allegedly attempted to draw his bolo but Oloverio stopped him by drawing
his own bolo. They grappled with it, and eventually, Oloverio ended up stabbing
Gulane, which resulted in the latter’s death. Accompanied by a barangay tanod,
Oloverio went to the municipal hall to surrender to the authorities. He admitted
that he stabbed Gulane because he could no longer bear the insulting remarks
against him.8

Romulo Lamoste (Lamoste), then Barangay Captain of Barangay Belen,

Palompon, Leyte, alleged that Gulane and Oloverio had an altercation before the
incident. He alleged that Oloverio’s daughter had once confided to Oloverio that
Gulane wanted to touch her private parts. About a month later, he allegedly heard
Gulane ask Oloverio "in a joking manner about his incestuous relationship with
his mother."9 Oloverio allegedly got mad and they ended up fighting, but
Lamoste was able to subdue them. He, however, admitted that he was not
present during the incident.10

On January 29, 2010, Branch 17 of the Regional Trial Court of Palompon, Leyte
rendered its Decision11 finding Oloverio guilty beyond reasonable doubt of
murder.

The trial court ruled that the mitigating circumstance of passion and obfuscation
was not present in this case since it could not co-exist with the presence of
treachery. The only mitigating circumstance it found present was of voluntary
surrender. As murder was punishable by reclusion perpetua to death, it imposed
the lesser penalty of reclusion perpetua.12 The dispositive portion reads:

Wherefore, as to the proffer of mitigating circumstances of Passion and

Obfuscation as defined by Art. 13 of the Revised Penal Code cannot be
appreciated, what can be appreciated only is the voluntary surrender which is
covered by Art. 13 par. 7 of the Revised Penal Code.

So from the evidence extant from the records, the court finds the accused
Marcelino Oloverio, GUILTY of the crime of Murder as the evidence proved the
guilt of the accused beyond reasonable doubt that he committed the crime of
Murder as defined and penalized under Article 248 of the Revised Penal Code
and therefore sentences him to suffer the penalty of Reclusion Perpetua. The
voluntary surrender is none availing as reclusion perpetua is not a divisible
penalty as defined by the Revised Penal Code.

The accused Marcelino Oloverio is also ordered to pay Fifty Thousand

(50,000.00) Pesos damages to the heirs of Rodulfo Gulane.
SO ORDERED.13

The case records were forwarded to the Court of Appeals on May 6, 2010.14

On January 29, 2013, the Court of Appeals rendered its Decision15 affirming the
conviction. It found that Oloverio failed to establish with clear and convincing
evidence that Gulane "committed an unlawful act which sufficiently caused him to
act with passion and obfuscation."16

The Court of Appeals found that Gulane’s act of insulting Oloverio before the
stabbing was unsupported by evidence.17 Instead, it found that treachery was
present since Gulane was unsuspecting when Oloverio suddenly attacked him.
The court also noted that Gulane was already 83 years old and might not have
had a chance to defend himself.18

The Court of Appeals also affirmed the trial court’s imposition of the lesser
penalty of reclusion perpetua in view of Oloverio’s voluntary surrender.19 It,
however, modified the award of damages to include moral, temperate, and
exemplary damages.20 The dispositive portion reads:

WHEREFORE, in view of the foregoing, the appeal is DENIED. The Decision

dated January 29, 2010 of the RTC, Branch 17, of Palompon, Leyte in Criminal
Case No. P-1163 finding appellant guilty beyond reasonable doubt of the crime of
murder is AFFIRMED with the MODIFICATION that with respect to the trial
court’s award of Php50,000.00 damages, this should be understood to represent
the civil indemnity. Appellant is further ordered to pay the heirs of Rodulfo Gulane
Php50,000.00 as moral damages, Php25,000.00 as temperate damages, and
Php30,000.00 as exemplary damages. All damages shall be subject to interest at
the legal rate of 6% per annum from the finality of this Decision until fully paid.

SO ORDERED.21 (Emphasis in the original)

On March 18, 2013, Oloverio filed his Notice of Appeal,22 which was favorably
acted upon by the Court of Appeals.23

In compliance with this court’s Resolution24 dated April 2, 2014, Oloverio and the
Office of the Solicitor General separately manifested that they were no longer
filing their supplemental briefs before this court since they have already stated
their arguments in their briefs before the Court of Appeals.25
Upon review of the case records, this court resolves to modify the Decision of the
Court of Appeals.

Accused-appellant Marcelino Oloverio is guilty only of homicide under Article 249

of the Revised Penal Code. He is entitled to the mitigating circumstances of
passion and obfuscation and of voluntary surrender.

Murder is the act of killing a person under the circumstances mentioned in Article
248 of the Revised Penal Code. The provision states:

ARTICLE 248. Murder. — Any person who, not falling within the provisions of
article 24626 shall kill another, shall be guilty of murder and shall be punished by
reclusion temporal in its maximum period to death, if committed with any of the
following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed
men, or employing means to weaken the defense or of means or persons to
insure or afford impunity.

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a

vessel, derailment or assault upon a street car or locomotive, fall of an airship, by
means of motor vehicles, or with the use of any other means involving great
waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph,

or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any
other public calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the

victim, or outraging or scoffing at his person or corpse.

To be able to sustain a conviction for murder, the prosecution must prove the
following elements:

1. That a person was killed.

2. That the accused killed him.

3. That the killing was attended by any of the qualifying circumstances mentioned
in Art. 248.

4. The killing is not parricide or infanticide.27

For murder or homicide, the prosecution must also be able to prove the accused
had the intent to kill.28

The witnesses, Panday and Pogay, positively identified accused-appellant as the

one who stabbed Gulane with a bolo.

Panday stated:

Q: When you saw Rodulfo Gulane walking alone towards Brgy. San Pablo,
Palompon, Leyte, do you recall of any untoward incident that took place?

A: Yes, sir, I saw the incident.

Q: What was that incident?

A: Rodulfo Gulane was killed by [a] certain Marcelino Oloverio.

Q: Now, you said that Rodulfo Gulane was killed by Marcelino Oloverio, what
was used by Marcelino Oloverio in killing the deceased?

A: A bolo.

....

Q: Now, you said that Rodulfo Gulane was killed by Marcelino Oloverio with the
use of this bolo, would you describe to this Honorable Court, how and in what
way did Marcelino Oloverio killed [sic] Rodulfo Gulane?

A: Yes, while Rodulfo Gulane was walking, Marcelino Oloverio held the right
shoulder of Rodulfo Gulane then stabbed him many times and there was
strucking [sic] the victim Rodulfo Gulane.29

(Emphasis supplied)
Pogay also testified:

Q: When you reached Brgy. Belen, what have you observed?

A: I observed Lino stabbed Dolpo [sic] Gulane and when Dolfo Gulane fell down,
he said "Patay na ang datu sa Brgy. San Pablo."

....

Q: If you can recall, how many times did Marcelino Oloverio stab Rodulfo
Gulane?

A: Many times and there was also a hacking blow.30

Their testimonies were consistent with the medico-legal findings that Gulane died
due to multiple stab wounds. Both the trial court and the Court of Appeals also
found that the witnesses had no ill motive to testify against accused-appellant.31

The intent to kill is established not only by the number of stab wounds found on
Gulane, but also by accused-appellant’s own admission that he stabbed
Gulane.32

II

The presence of treachery, however, has not been sufficiently established.

Treachery is defined by the Revised Penal Code as:

ARTICLE 14. Aggravating Circumstances. — The following are aggravating

circumstances:

....

16. That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of the crimes against the
person, employing means, methods, or forms in the execution thereof, which
tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make.

For treachery to be appreciated, the following elements must be proven:

(a) the employment of means of execution that gives the person attacked no
opportunity to defend himself or retaliate, and (b) the means of execution was
deliberately or consciously adopted.33

In People v. Lobino:34

In People vs. Estrellanes, we declared in no uncertain terms that ‘the mere fact
that the victim had no weapon with which he could have defended himself is not
sufficient to prove the existence of the first element of treachery, for settled is the
rule that treachery cannot be presumed; it must be proved by clear and
convincing evidence or as conclusively as the killing itself.’ [sic] Furthermore,
there must be some evidence, none of which, however, obtains in the instant
case, showing that this mode of assault is deliberately or consciously adopted to
insure the execution of the crime without risk to the offender. Accordingly, if the
attack was not preconceived and deliberately adopted but was just triggered by
the sudden infuriation on the part of the accused because of the provocation on
the part of the victim, then no treachery attended the commission of the crime.
The essence of treachery is the sudden and unexpected attack without the
slightest provocation on the part of the person being attacked[.]35 (Emphasis
supplied)

Pogay testified that Gulane was walking down the road when accused-appellant
came up behind him, tapped him on the shoulder, and then stabbed him
repeatedly, thus:

Q: You said Rodulfo Gulane[,] before the stabbing, was heading towards Brgy.
San Pablo, while he was walking where was the accused positioned himself?
[sic]

A: He was following the victim and then he tapped the right shoulder and stabbed
him.

....

Pros. Macapugas: Mr. Witness, during the stabbing incident, did you know
whether or not the victim in this case was able to retaliate?

A: No ma’am, he was not able to retaliate.36 (Emphasis supplied)

The mere suddenness of an attack should not be the sole basis in finding
treachery. There must be evidence to show that the accused deliberately or
consciously adopted the means of execution to ensure its success.37

At the time of the incident, Gulane was already 83 years old. Accused-appellant
was standing behind him. He already had the advantage of surprise with
Gulane’s back turned. Gulane’s advanced age and position would have ensured
his death as it would have prevented him from being able to retaliate.

Instead, accused-appellant tapped Gulane on the shoulder as if to call his

attention. He waited until Gulane was facing him before he started stabbing. The
medico-legal report indicates stab wounds on the chest and extremities,38
proving that Gulane was stabbed from the front.

In People v. Real:39

As a rule, a sudden attack by the assailant, whether frontally or from behind, is

treachery if such mode of attack was coolly and deliberately adopted by him with
the purpose of depriving the victim of a chance to either fight or retreat. The rule
does not apply, however, where the attack was not preconceived and deliberately
adopted but was just triggered by the sudden infuriation on the part of the
accused because of the provocative act of the victim.40 (Emphasis supplied)

The attack, while sudden, cannot be said to have been unexpected or

unprovoked. Accused-appellant alleged that before the attack, Gulane had been
insulting him and mocking him in a loud voice, "How many times did you have
sexual intercourse with your mother?"41 This utterance, along with testimonies of
Gulane’s previous insults, would have been sufficient provocation for accused-
appellant to stab him.

Since treachery has not been proven, the crime is merely homicide. Under the
Revised Penal Code:

ARTICLE 249. Homicide. — Any person who, not falling within the provisions of
article 246 shall kill another without the attendance of any of the circumstances
enumerated in the next preceding article, shall be deemed guilty of homicide and
be punished by reclusion temporal.

The penalties of the accused-appellant must be modified accordingly.

III
The mitigating circumstance of passion and obfuscation42 is present in this case.

To be able to successfully plead the mitigating circumstance of passion and

obfuscation, the accused must be able to prove the following elements:

1. that there be an act, both unlawful and sufficient to produce such condition of
mind; and

2. that said act which produced the obfuscation was not far removed from the
commission of the crime by a considerable length of time, during which the
perpetrator might recover his normal equanimity.43

In People v. Lobino:44

It has been held that "[T]here is passional obfuscation when the crime was
committed due to an uncontrollable burst of passion provoked by prior unjust or
improper acts, or due to a legitimate stimulus so powerful as to overcome
reason."

"The obfuscation must originate from lawful feelings. The turmoil and unreason
which naturally result from a quarrel or fight should not be confused with the
sentiment or excitement in the mind of a person injured or offended to such a
degree as to deprive him of his sanity and self-control, because the cause of this
condition of mind must necessarily have preceded the commission of the
offense."

Moreover, "the act producing the obfuscation must not be far removed from the
commission of the crime by a considerable length of time, during which the
accused might have recovered his normal equanimity."45 (Emphasis supplied)

There is no uniform rule on what constitutes "a considerable length of time." The
provocation and the commission of the crime should not be so far apart that a
reasonable length of time has passed during which the accused would have
calmed down and be able to reflect on the consequences of his or her actions.
What is important is that the accused has not yet "recovered his normal
equanimity" when he committed the crime.

To appreciate passion and obfuscation as a mitigating circumstance, the facts

must be examined on a case-to-case basis.

In People v. Mojica,46 Aurelio Mojica was accused of murder for stabbing

Diosdado Tormon to death. He attempted to mitigate his liability by alleging that
the victim humiliated him a month before the incident. The trial court convicted
him of murder without appreciating the mitigating circumstance of passion and
obfuscation. This court agreed, stating:

The last point to consider is whether the mitigating circumstance of passion or

obfuscation ought to have been appreciated in favor of appellant. What was done
to him on that fateful day of November 16, 1968 when he was subjected to
treatment offensive to his dignity, having been slapped and asked to kneel down
in the attitude of a supplicant, certainly could give rise to the feeling of passion or
obfuscation. There is a host of cases from United States v. Ferrer, a 1901
decision, to People v. Pareja, decided in 1969, that so attests. Conduct of that
character, in the language of United States v. Salandanan, would ordinarily be
expected to have produced "such powerful excitement as to overcome reason
and self-control." Unfortunately for appellant, however, this mitigating
circumstance cannot be invoked because the killing took place one month and
five days later. The language of Justice Malcolm in United States v. Sarikala is
relevant: "As to the mitigating circumstance of passion and obfuscation we
likewise cannot agree that it can be taken into consideration because more than
twentyfour hours elapsed after the insults of Cotton to the accused and the
criminal act." In the relatively recent case of People v. Constantino, such a plea
was likewise rejected. There the killing took place after four days. As pointed out
by Justice Romualdez in People v. Alanguilang: "In order that the circumstance of
obfuscation can be considered, it is necessary to establish the existence of an
act both unlawful and sufficient to produce such a condition of mind; and that
said act which produced the obfuscation was not far removed from the
commission of the crime by a considerable length of time, during which the
perpetrator might recover his normal equanimity." Reference may also be made
to People v. Dagatan, where this Court could not consider the presence of this
mitigating circumstance as the act that caused the resentment "took place long
before the commission of the crime." People v. Gervacio had another way of
putting it, "a time not far removed from the commission of the crime." The lower
court, therefore, did not commit any error in refusing to credit appellant with the
mitigating circumstance of passion and obfuscation.47 (Emphasis supplied,
citations omitted)

However, a fight between the accused and the victim prior to the crime is not
always enough to be able to successfully prove that passion and obfuscation
attended it.

This court did not appreciate passion and obfuscation in People v. Rabanillo,48
where the accused killed the victim 30 minutes after they came to blows:

Suarez and Magalong testified that before the hacking incident, MORALES
reprimanded RABANILLO in front of their drinking mates for dousing him with
water, which entered into his ear. RABANILLO resented it and felt humiliated.
Hence, a fistfight ensued, but was eventually broken up. The event must have
continued to dominate RABANILLO’s thought that he decided to strike back at
the victim by hacking him to death. Clearly, the assault was made in a fit of
anger.

For passion and obfuscation to be mitigating, the same must originate from lawful
feelings. The turmoil and unreason that naturally result from a quarrel or fight
should not be confused with the sentiment or excitement in the mind of a person
injured or offended to such a degree as to deprive him of his sanity and self-
control. The excitement which is inherent in all persons who quarrel and come to
blows does not constitute obfuscation.

Moreover, the act producing obfuscation must not be far removed from the
commission of the crime by a considerable length of time, during which the
accused might have regained his normal equanimity. Thus, it has been held that
where at least half an hour elapsed between the previous fight and the killing, the
accused cannot be given the benefit of the attenuating circumstance of
obfuscation.

In this case, 30 minutes intervened between the fistfight and the killing of
MORALES by RABANILLO. The attack cannot, therefore, be said to be the result
of a sudden impulse of natural and uncontrollable fury. Having been actuated
more by the spirit of revenge or by anger and resentment for having been
publicly berated by MORALES, RABANILLO cannot be credited with the
extenuating circumstance of passion and obfuscation.49 (Emphasis supplied)

This court clarifies in People v. Bautista:50

The turmoil and unreason which naturally result from a quarrel or fight should not
be confused with the sentiment or excitement in the mind of a person injured or
offended to such a degree as to deprive him of his sanity and self-control,
because the cause of this condition of mind must necessarily have preceded the
commission of the offense.51

This court has also ruled that acts done in the spirit of revenge cannot be
considered acts done with passion and obfuscation.
In People v. Caber,52 Francisco Caber was seen chasing Teodoro Ramirez with
a bladed weapon, locally known as a pisao, and stabbing Ramirez twice, which
resulted in his death.

Caber tried to argue that he stabbed Ramirez in a fit of passion and obfuscation
and alleged that Ramirez raped his wife three (3) days before the incident. This
court rejected the claim:

Even assuming, however, that he really killed Ramirez because of passion or

obfuscation in order to avenge the wrong done to his wife by the victim, still he
cannot be credited with this circumstance as he would then have acted "in the
spirit of revenge." Furthermore, although accused-appellant's wife was allegedly
raped by Ramirez on November 17, 1994, the stabbing incident in question took
place three days later or on November 20, 1994. Thus, the act which was
supposed to have caused passion or obfuscation on the part of the accused-
appellant was so far removed from the date of the stabbing. In United States v.
Sarikala, the Court ruled that the lapse of more than 24 hours, reckoned from the
commission of the act which produced the passion or obfuscation up to the time
of the commission of the felony, constituted a considerable period of time after
which such circumstance would no longer be deemed present.53 (Emphasis
supplied)

The facts of this case, however, are similar to that in People v. Real.54 In Real,
Melchor Real and Edgardo Corpuz, his fellow market vendor, engaged in a
heated argument over the right to use the market table to display their fish. The
municipal mayor, then present at the scene, tried to pacify them and told them
that they were arguing over trivial matters. Both parties calmed down after a
while.

Corpuz, however, said something to Real, to which Real softly uttered, "You are
being too oppressive." When Corpuz kept walking near the table, Real started to
sharpen his bolo. As Corpuz turned his back, Real hacked him with his bolo
which caused his death.

Real was held liable for homicide, but this court took into account the mitigating
circumstance of passion and obfuscation, stating that:

[t]he act of the victim in berating and humiliating appellant was enough to
produce passion and obfuscation, considering that the incident happened in a
market place within full view and within hearing distance of many people.55
This court also noted:

In the case at bench, the assault came in the course of an altercation and after
appellant had sharpened his bolo in full view of the victim. Appellant's act of
sharpening his bolo can be interpreted as an attempt to frighten the victim so the
latter would leave him alone. It was simply foolhardy for the victim to continue
walking to and fro near appellant in a taunting manner while the latter was
sharpening his bolo.56

Accused-appellant admitted that he stabbed Gulane but alleged that they had
been fighting. He alleged that Gulane had been hurling insults at him which
provoked him to react; in effect, he alleged that the mitigating circumstance of
passion and obfuscation was present in this case.57

The Court of Appeals rejected his contention and stated that no evidence was
presented to prove that immediately before or at the time of the incident, there
was an altercation between accused-appellant and Gulane that would provoke
his reaction.

Panday testified:

Q: Do you remember if there was any altercation that took place between the
accused and the victim in this case before the incident?

A: I have not heard any argument from both of them and he stabbed Rodulfo
Gulane and Rodulfo Gulane uttered the words in a vernacular, "Man luba kaman
Ling."58

Pogay further testified:

Q: Before the stabbing incident, have you noticed if there was an altercation
between Rodulfo Gulane and Marcelino Oloverio?

A: No, sir.59

Panday, however, clarifies:

Q: Now, before the actual stabbing of the victim in this case, you said there was
no altercation between the accused and Rodulfo Gulane, now, if you can recall[,]
if there was any incident that took place immediately before the stabbing
incident?

A: I cannot say any but what I only say is that I only saw the incident.60
(Emphasis supplied)

The prosecution could not prove that an altercation might have occurred between
accused-appellant and Gulane before the incident since their eyewitnesses could
only testify to the actual stabbing.

The Court of Appeals also failed to take into account the testimony of Lamoste,
the defense witness.

Lamoste testified that he and accused-appellant worked together, as he was then

the barangay captain and accused-appellant was a barangay tanod. He alleged
that accused-appellant’s daughter once confided to accusedappellant that
Gulane told her that he wanted to touch her private parts.61

Lamoste testified that about a month before the incident, he witnessed Gulane
telling accused-appellant, "Kumusta na man mo imo mama nagtap-il mo imo
mama naba mo produkto?" ("How is your relationship with your mother have you
produced fruits with your mother?") He alleged that accused-appellant got angry
and tried to attack Gulane, but he was able to intervene and part the two.62

The prosecution did not deny any portion of Lamoste’s testimony and only
insisted that no altercation occurred immediately before the stabbing.

Both the trial court and the Court of Appeals narrowed its understanding of
passion and obfuscation to refer only to the emotions accused-appellant felt in
the seconds before a crime is committed. It failed to understand that passion may
linger and build up over time as repressed anger enough to obfuscate reason
and self-control.

The circumstances of both victim and accused-appellant were also not taken into
account by the trial court and the Court of Appeals.

Accused-appellant referred to Gulane as the "datu" or rich man of Barangay San

Pablo. Gulane enjoyed an economic ascendancy over accused-appellant, a mere
barangay tanod.

Gulane not only threatened to molest accused-appellant’s daughter but also

accused him in public of having incestuous relations with his mother. Gulane was
said to have insulted accused-appelant in full view of his immediate superior, the
barangay captain.

Both victim and accused-appellant lived in the small locality of Palompon, Leyte.
As with any small town, it was a place where a person’s degrading remarks
against another could be made the measure of the latter’s character. Gulane’s
insults would have been taken into serious consideration by the town’s residents
because of his wealth and stature in the community.

There was neither a reason given why Gulane acted that way towards accused-
appellant nor any evidence to show that accused-appellant had previously
wronged him.

The prosecution did not deny that Gulane insulted accused-appellant on various
occasions. The witnesses could not state with reasonable certainty that Gulane
did not provoke accused-appellant a few minutes before the incident; they could
only testify to the incident itself and the seconds which preceded it.

In view of these considerations, we find that the mitigating circumstance of

passion and obfuscation is present in this case.

IV

According to Article 249 of the Revised Penal Code, homicide is punishable by

reclusion temporal. The trial court and the Court of Appeals considered accused-
appellant’s voluntary surrender to the authorities as a mitigating circumstance.63
We find no reason to disturb this conclusion.

Considering that there are two (2) mitigating circumstances in accused-

appellant’s favor, the imposable penalty must be that which is next lower to that
prescribed by law. Article 64 (5) of the Revised Penal Code provides:

ARTICLE 64. Rules for the Application of Penalties Which Contain Three
Periods. — In cases in which the penalties prescribed by law contain three
periods, whether it be a single divisible penalty or composed of three different
penalties, each one of which forms a period in accordance with the provisions of
articles 76 and 77, the courts shall observe for the application of the penalty the
following rules, according to whether there are or are not mitigating or
aggravating circumstances:

....
5. When there are two or more mitigating circumstances and no aggravating
circumstances are present, the court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem applicable, according to the
number and nature of such circumstances.

Accordingly, the imposable penalty is prision mayor. Applying the Indeterminate

Sentence Law, accused-appellant should be sentenced to suffer the penalty of
imprisonment, the minimum of which should be within the range of prision
correccional64 and the maximum of which should be within the range of prision
mayor.65

Based on the records, accused-appellant was put under preventive imprisonment

pending his conviction by the trial court.

In accordance with Article 29 of the Revised Penal Code, the time undergone by
accused-appellant under preventive imprisonment shall be credited to his service
of sentence, provided that he has given his written conformity to abide by the
disciplinary rules imposed upon convicted prisoners. The provision states:

"ART. 29. Period of preventive imprisonment deducted from term of

imprisonment. – Offenders or accused who have undergone preventive
imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone
preventive imprisonment if the detention prisoner agrees voluntarily in writing
after being informed of the effects thereof and with the assistance of counsel to
abide by the same disciplinary rules imposed upon convicted prisoners, except in
the following cases:

"1. When they are recidivists, or have been convicted previously twice or more
times of any crime; and

"2. When upon being summoned for the execution of their sentence they have
failed to surrender voluntarily.

"If the detention prisoner does not agree to abide by the same disciplinary rules
imposed upon convicted prisoners, he shall do so in writing with the assistance of
a counsel and shall be credited in the service of his sentence with four-fifths of
the time during which he has undergone preventive imprisonment[.]"66

The letter of PGI Gilbert P. Cayubit, Officer-in-Charge of the Leyte Sub-Provincial

Jail, stated that accused-appellant had been transferred to Leyte Regional Prison
on May 4, 2010.67 The transfer to Leyte Regional Prison was also confirmed by
SO2 Jorge A. Colanta, Officer-in-Charge of the Leyte Regional Prison, who
stated that accused-appellant was received by the prison on May 27, 2010.68

As the exact length of time cannot be determined with certainty, the trial court
shall determine the exact period of preventive imprisonment that may be credited
in accused-appellant’s favor.

The monetary awards must also be modified. In a prosecution for murder or

homicide, civil indemnity and moral damages may be awarded without need of
further proof other than the victim’s death.69 The monetary awards of _50,000.00
in civil indemnity and _50,000.00 in moral damages are in line with prevailing
jurisprudence.70 Temperate damages may also be awarded in lieu of actual
damages, as in this case where the prosecution failed to prove proof of actual
damages.71 The award of exemplary damages, however, ·must be deleted in
view of Article 2230 of the Civil Code.72

WHEREFORE, the Decision of the Court of Appeals is SET ASIDE. Accused-

appellant Marcelino Oloverio is found GUILTY beyond reasonable doubt of the
crime of homicide under Article 249 of the Revised Penal Code.

As the crime was attended with the mitigating circumstances of passion and
obfuscation and voluntary surrender with no aggravating circumstance, accused-
appellant Marcelino Oloverio is SENTENCED to suffer the indeterminate penalty
of imprisonment for two (2) years, four ( 4) months, and one ( 1) day of prision
correccional as minimum, to eight (8) years and one (1) day of prision mayor as
maximum.73 The period of his preventive imprisonment shall be credited in his
favor if he has given his written confonnity to abide by the disciplinary rules
imposed upon convicted prisoners in accordance with Article 29 of the Revised
Penal Code, as amended.

Accused-appellant Marcelino Oloverio is further ordered to pay the heirs of

Rodulfo Gulane the amounts of P50,000.00 as civi.l indemnity, P50,000.00 as
moral damages, and P25,000.00 as temperate damages. All damages awarded
shall be subject to the rate of 6% legal interest per annum from the finality of this
Decision until its full satisfaction.

SO ORDERED.

BONGALON V. PEOPLE (G.R. NO. 169533)--MITIGATING

BERSAMIN, J.:

Not every instance of the laying of hands on a child constitutes the crime of child
abuse under Section 10 (a) of Republic Act No. 7610.1 Only when the laying of
hands is shown beyond reasonable doubt to be intended by the accused to
debase, degrade or demean the intrinsic worth and dignity of the child as a
human being should it be punished as child abuse. Otherwise, it is punished
under the Revised Penal Code.

The Case

On June 22, 2005,2 the Court of Appeals (CA) affirmed the conviction of the
petitioner for the crime of child abuse under Section 10 (a) of Republic Act No.
7610.

Antecedents

On June 26, 2000, the Prosecutor’s Office of Legazpi City charged the petitioner
in the Regional Trial Court (RTC) in Legazpi City with child abuse, an act in
violation of Section 10(a) of Republic Act No. 7610, alleging as follows:

That on or about the 11th day of May 2000, in the City of Legazpi Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there wilfully, unlawfully and feloniously commit on the person of
JAYSON DELA CRUZ, a twelve year-old,

Grade VI pupil of MABA Institute, Legazpi City, acts of physical abuse and/or
maltreatment by striking said JAYSON DELA CRUZ with his palm hitting the latter
at his back and by slapping said minor hitting his left cheek and uttering
derogatory remarks to the latter’s family to wit: "Mga hayop kamo, para dayo
kamo digdi, Iharap mo dito ama mo" (You all animals, you are all strangers here.
Bring your father here), which acts of the accused are prejudicial to the child’s
development and which demean the intrinsic worth and dignity of the said child
as a human being.

CONTRARY TO LAW.3

The Prosecution showed that on May 11, 2002, Jayson Dela Cruz (Jayson) and
Roldan, his older brother, both minors, joined the evening procession for the
Santo Niño at Oro Site in Legazpi City; that when the procession passed in front
of the petitioner’s house, the latter’s daughter Mary Ann Rose, also a minor,
threw stones at Jayson and called him "sissy"; that the petitioner confronted
Jayson and Roldan and called them names like "strangers" and "animals"; that
the petitioner struck Jayson at the back with his hand, and slapped Jayson on the
face;4 that the petitioner then went to the brothers’ house and challenged
Rolando dela Cruz, their father, to a fight, but Rolando did not come out of the
house to take on the petitioner; that Rolando later brought Jayson to the Legazpi
City Police Station and reported the incident; that Jayson also underwent medical
treatment at the Bicol Regional Training and Teaching Hospital;5 that the doctors
who examined Jayson issued two medical certificates attesting that Jayson
suffered the following contusions, to wit: (1) contusion .5 x 2.5 scapular area, left;
and (2) +1x1 cm. contusion left zygomatic area and contusion .5 x 2.33 cm.
scapular area, left.6

On his part, the petitioner denied having physically abused or maltreated Jayson.
He explained that he only talked with Jayson and Roldan after Mary Ann Rose
and Cherrylyn, his minor daughters, had told him about Jayson and Roldan’s
throwing stones at them and about Jayson’s burning Cherrylyn’s hair. He denied
shouting invectives at and challenging Rolando to a fight, insisting that he only
told Rolando to restrain his sons from harming his daughters.7

To corroborate the petitioner’s testimony, Mary Ann Rose testified that her father
did not hit or slap but only confronted Jayson, asking why Jayson had called her
daughters "Kimi" and why he had burned Cherrlyn’s hair. Mary Ann Rose denied
throwing stones at Jayson and calling him a "sissy." She insisted that it was
instead Jayson who had pelted her with stones during the procession. She
described the petitioner as a loving and protective father.8

Ruling of the RTC

After trial, the RTC found and declared the petitioner guilty of child abuse as
charged, to wit:9

WHEREFORE, in view of the foregoing considerations, judgment is hereby

rendered finding the accused GEORGE BONGALON @ "GI" GUILTY beyond
reasonable doubt of Violation of Republic Act No. 7610, and is hereby ordered to
undergo imprisonment of six (6) years and one (1) day to eight (8) years of
prision mayor in its minimum period.

SO ORDERED.
Ruling of the CA

On appeal, the petitioner assailed the credibility of the Prosecution witnesses by

citing their inconsistencies. He contended that the RTC overlooked or
disregarded material facts and circumstances in the records that would have led
to a favorable judgment for him. He attacked the lack of credibility of the
witnesses presented against him, citing the failure of the complaining brothers to
react to the incident, which was unnatural and contrary to human experience.

The CA affirmed the conviction, but modified the penalty,10 viz:

WHEREFORE, premises considered, the decision dated October 20, 2003 of the
Regional Trial Court, Branch 9 of Legazpi City is hereby AFFIRMED with
MODIFICATION in that accused-appellant George Bongalon is sentenced to
suffer the indeterminate penalty of (4) years, two (2) months and one (1) day of
prision correccional, as minimum term, to six (6) years, eight (8) months and 1
day of prision mayor as the maximum term.

Further, accused-appellant is ordered to pay the victim, Jayson de la Cruz the

additional amount of ₱5,000 as moral damages.

SO ORDERED.

Issues

The petitioner has come to the Court via a petition for certiorari under Rule 65 of
the Rules of Court.11

The petitioner asserts that he was not guilty of the crime charged; and that even
assuming that he was guilty, his liability should be mitigated because he had
merely acted to protect her two minor daughters.

Ruling of the Court

At the outset, we should observe that the petitioner has adopted the wrong
remedy in assailing the CA’s affirmance of his conviction. His proper recourse
from the affirmance of his conviction was an appeal taken in due course. Hence,
he should have filed a petition for review on certiorari. Instead, he wrongly
brought a petition for certiorari. We explained why in People v. Court of
Appeals:12
The special civil action for certiorari is intended for the correction of errors of
jurisdiction only or grave abuse of discretion amounting to lack or excess of
jurisdiction. Its principal office is only to keep the inferior court within the
parameters of its jurisdiction or to prevent it from committing such a grave abuse
of discretion amounting to lack or excess of jurisdiction. As observed in Land
Bank of the Philippines v. Court of Appeals, et al. "the special civil action for
certiorari is a remedy designed for the correction of errors of jurisdiction and not
errors of judgment. The raison d’etre for the rule is when a court exercises its
jurisdiction, an error committed while so engaged does not deprived it of the
jurisdiction being exercised when the error is committed. If it did, every error
committed by a court would deprive it of its jurisdiction and every erroneous
judgment would be a void judgment. In such a scenario, the administration of
justice would not survive. Hence, where the issue or question involved affects the
wisdom or legal soundness of the decision–not the jurisdiction of the court to
render said decision–the same is beyond the province of a special civil action for
certiorari. The proper recourse of the aggrieved party from a decision of the
Court of Appeals is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court.

It is of no consequence that the petitioner alleges grave abuse of discretion on

the part of the CA in his petition. The allegation of grave abuse of discretion no
more warrants the granting of due course to the petition as one for certiorari if
appeal was available as a proper and adequate remedy. At any rate, a reading of
his presentation of the issues in his petition indicates that he thereby imputes to
the CA errors of judgment, not errors of jurisdiction. He mentions instances
attendant during the commission of the crime that he claims were really
constitutive of justifying and mitigating circumstances; and specifies reasons why
he believes Republic Act No. 7610 favors his innocence rather than his guilt for
the crime charged.13 The errors he thereby underscores in the petition
concerned only the CA’s appreciation and assessment of the evidence on record,
which really are errors of judgment, not of jurisdiction.

Even if we were to treat the petition as one brought under Rule 45 of the Rules of
Court, it would still be defective due to its being filed beyond the period provided
by law. Section 2 of Rule 45 requires the filing of the petition within 15 days from
the notice of judgment to be appealed. However, the petitioner received a copy of
the CA’s decision on July 15, 2005,14 but filed the petition only on September 12,
2005,15 or well beyond the period prescribed by the Rules of Court.

The procedural transgressions of the petitioner notwithstanding, we opt to forego

quickly dismissing the petition, and instead set ourselves upon the task of
resolving the issues posed by the petition on their merits. We cannot fairly and
justly ignore his plea about the sentence imposed on him not being
commensurate to the wrong he committed. His plea is worthy of another long and
hard look. If, on the other hand, we were to outrightly dismiss his plea because of
the procedural lapses he has committed, the Court may be seen as an unfeeling
tribunal of last resort willing to sacrifice justice in order to give premium to the
rigidity of its rules of procedure. But the Rules of Court has not been intended to
be rigidly enforced at all times. Rather, it has been instituted first and foremost to
ensure justice to every litigant. Indeed, its announced objective has been to
secure a "just, speedy and inexpensive disposition of every action and
proceeding."16 This objective will be beyond realization here unless the Rules of
Court be given liberal construction and application as the noble ends of justice
demand. Thereby, we give primacy to substance over form, which, to a temple of
justice and equity like the Court, now becomes the ideal ingredient in the
dispensation of justice in the case now awaiting our consideration.

The petitioner’s right to liberty is in jeopardy. He may be entirely deprived of such

birthright without due process of law unless we shunt aside the rigidity of the
rules of procedure and review his case. Hence, we treat this recourse as an
appeal timely brought to the Court. Consonant with the basic rule in criminal
procedure that an appeal opens the whole case for review, we should deem it our
duty to correct errors in the appealed judgment, whether assigned or not.17

The law under which the petitioner was charged, tried and found guilty of
violating is Section 10 (a), Article VI of Republic Act No. 7610, which relevantly
states:

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and other
Conditions Prejudicial to the Child’s Development. –

(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the child’s
development including those covered by Article 59 of Presidential Decree No.
603, as amended, but not covered by the Revised Penal Code, as amended,
shall suffer the penalty of prision mayor in its minimum period.

xxxx

Child abuse, the crime charged, is defined by Section 3 (b) of Republic Act No.
7610, as follows:
Section 3. Definition of terms. –

xxxx

(b) "Child Abuse" refers to the maltreatment, whether habitual or not, of the child
which includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and
emotional maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic
worth and dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and
shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in

serious impairment of his growth and development or in his permanent incapacity
or death.

xxxx

Although we affirm the factual findings of fact by the RTC and the CA to the effect
that the petitioner struck Jayson at the back with his hand and slapped Jayson on
the face, we disagree with their holding that his acts constituted child abuse
within the purview of the above-quoted provisions. The records did not establish
beyond reasonable doubt that his laying of hands on Jayson had been intended
to debase the "intrinsic worth and dignity" of Jayson as a human being, or that he
had thereby intended to humiliate or embarrass Jayson. The records showed the
laying of hands on Jayson to have been done at the spur of the moment and in
anger, indicative of his being then overwhelmed by his fatherly concern for the
personal safety of his own minor daughters who had just suffered harm at the
hands of Jayson and Roldan. With the loss of his self-control, he lacked that
specific intent to debase, degrade or demean the intrinsic worth and dignity of a
child as a human being that was so essential in the crime of child abuse.

It is not trite to remind that under the well-recognized doctrine of pro reo every
doubt is resolved in favor of the petitioner as the accused. Thus, the Court should
consider all possible circumstances in his favor.18

What crime, then, did the petitioner commit?

Considering that Jayson’s physical injury required five to seven days of medical
attention,19 the petitioner was liable for slight physical injuries under Article 266
(1) of the Revised Penal Code, to wit:

Article 266. Slight physical injuries and maltreatment. — The crime of slight
physical injuries shall be punished:

1. By arresto menor when the offender has inflicted physical injuries which shall
incapacitate the offended party for labor from one to nine days, or shall require
medical attendance during the same period.

xxxx

The penalty for slight physical injuries is arresto menor, which ranges from one
day to 30 days of imprisonment.20 In imposing the correct penalty, however, we
have to consider the mitigating circumstance of passion or obfuscation under
Article 13 (6) of the Revised Penal Code,21 because the petitioner lost his
reason and self-control, thereby diminishing the exercise of his will power.22
Passion or obfuscation may lawfully arise from causes existing only in the honest
belief of the accused.23 It is relevant to mention, too, that in passion or
obfuscation, the offender suffers a diminution of intelligence and intent. With his
having acted under the belief that Jayson and Roldan had thrown stones at his
two minor daughters, and that Jayson had burned Cherrlyn’s hair, the petitioner
was entitled to the mitigating circumstance of passion. Arresto menor is
prescribed in its minimum period (i.e., one day to 10 days) in the absence of any
aggravating circumstance that offset the mitigating circumstance of passion.
Accordingly, with the Indeterminate Sentence Law being inapplicable due to the
penalty imposed not exceeding one year,24 the petitioner shall suffer a straight
penalty of 10 days of arresto menor.

The award of moral damages to Jayson is appropriate. Such damages are

granted in criminal cases resulting in physical injuries.25 The amount of
₱5,000.00 fixed by the lower courts as moral damages is consistent with the
current jurisprudence.26

WHEREFORE, we SET ASIDE the decision of the Court of Appeals; and ENTER
a new judgment: (a) finding petitioner George Bongalon GUlLTY beyond
reasonable doubt of the crime of SLIGHT PHYSICAL INJURIES under paragraph
1, Article 266, of the Revised Penal Code; (b) sentencing him to suffer the
penalty of 10 days of arresto menor; and (c) ordering him to pay Jayson Dela
Cruz the amount of ₱5,000.00 as moral damages, plus the costs of suit.

SO ORDERED.

G.R. No. 213601--QUALIFYING , CONSPIRACY

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
FRANKIE GERERO, ROLITO GERERO y ARMIROL, CHRISTOPHER
GERERO, ALFIE ESPINOSA y MENDEZ and RENATO BARTOLOME y JAIME,
Accused,
ROLITO GERERO y ARMIROL, ALFIE ESPINOSA y MENDEZ and RENATO
BARTOLOME y JAIME, Accused-Appellants

RESOLUTION

PEREZ, J.:

Before us on appeal is the Decision1 of the Court of Appeals in CA-G.R. CR-HC

No. 05834 dated 24 March 2014 which dismissed the appeal of appellants Rolito
Gerero y Armirol (Rolito), Alfie Espinosa y Mendez (Alfie) and Renato Bartolome
y Jaime (Renato) and affirmed with modification the Judgment2 dated 16
November 2010 of the Regional Trial Court (RTC) of San Mateo, Rizal, Branch
76, in Criminal Case No. 6666 finding appellants guilty beyond reasonable doubt
of the crime of Murder.

Appellants, together with the other accused murder were charged in an

Information, to wit:

That on or about the 8th day of October 2002, in the Municipality of Rodriguez,
Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, in conspiracy with one alias Rene Demonyo, whose
true name, identity and present whereabouts is still unknown, while armed with
and using bolos and a firearm, with intent to kill, did then and there wilfully,
unlawfully and feloniously attack, assault, hack and stab one Robert Glee y
Gubat, hitting the latter in different parts of his body and neck, thereby inflicting
upon him fatal injuries which caused his death soon thereafter, the said killing
attended by the qualifying circumstances of treachery, evident premeditation,
outraging or scoffing at the person or corpse by decapitating the victims (sic)
head, with the aid of armed men and abuse of superior strength which changes
(sic) the nature of the felony qualifying such killing to the more serious Capital
Crime of Murder aggravated by the circumstances of having committed the crime
in an uninhabited place, cruelty and ignominy.3

All of the accused, except for Frankie Gerero (Frankie) were arrested in 2005.
Upon arraignment, they all entered a "not guilty" plea. Accused-appellants
pleaded not guilty to all the charges. At the pre-trial conference, the parties
stipulated that on the 8th day of October 2002, all of the accused were in Sitio
Calumpit, Barangay Macabud, Rodriguez, Rizal.4

The prosecution's version goes: The victim, Robert Glee (Robert) and his wife,
Marilyn were having lunch in their house at the Watershed Compound of La
Mesa Dam when they heard the five accused challenge Robert to a fight. Before
Robert could act, the five accused barged into the house and simultaneously
hacked Robert with their bolos. Robert managed to run out of the house but the
accused caught up with him inside a carinderia. Thereat, they resumed in
hacking him until his head was decapitated. Frankie then threw Robert's head
into the mud.5 Marilyn claimed that Frankie and Alfie were her husband's co-
workers and Robert was killed out of envy.6

Renato, Frankie and Christopher Gerero (Christopher) are related to each other.
Frankie is Renato's nephew while Christopher is his grandson. The defense
version is that on the date of the incident, Renato ordered his fourteen year-old
grandchild Christopher to cook rice while he went to the nearby store to buy food.
Upon reaching the store, Renato recounted that he saw Frankie, Alfie, Rolito, and
Robert in a drinking spree. He then witnessed Frankie attack Robert. Renato
immediately fled.7 Rolito claimed that Frankie and Robert were arguing over their
work when Frankie suddenly stabbed Robert. Rolito immediately left the place of
incident for fear of being implicated in the crime.8 Alfie corroborated Rolito's
testimony.

On 16 November 2010, all the accused, except for Christopher were found guilty
beyond reasonable doubt of Murder. The dispositive portion of the RTC Decision
reads:

WHEREFORE, judgment is hereby rendered finding accused(s) Rolito Gerero y

Armirol, Alfie Espinosa y Mendez and Renato Bartolome y Jaime GUILTY beyond
reasonable doubt of the crime of Murder, as defined and penalized under Article
248 of the Revised Penal Code, as amended and sentencing each to suffer the
penalty of Reclusion Perpetua and to indemnify the heirs of the victim in the
amount of Php 50,000.00 as death indemnity and Moral damages in the amount
of Php 50,000.00. No pronouncement as to cost.
Accused (s) Rolito Gerero y Armirol, Alfie Espinosa y Mendez and Renato
Bartolome y Jaime are to be credited for the time spent for their preventive
detention in accordance with Art. 29 of the Revised Penal Code as amended by
R.A. 6127 and E.O. 214.

Accused(s) Rolito Gerero y Armirol, Alfie Espinosa y Mendez and Renato

Bartolome y Jaime are hereby committed to the National Bilibid Prisons in
Muntinlupa City for service of sentence.

Considering that accused Frankie Gerero remains at large, let an Alias Warrant
of Arrest be issued against him. In the meantime, send the instant case to the
archives pending his apprehension.9

On appeal, the Court of Appeals rendered the assailed decision dated 24 March
2014 affirming with modification the trial court's judgment. The dispositive portion
of the Decision reads:

WHEREFORE, premises considered, the instant Appeal is hereby DENIED.

Accordingly, the 16 November 2010 Decision of the Regional Trial Court of San
Mateo, Rizal, Branch 76 in Criminal Case No. 6666 is AFFIRMED WITH
MODIFICATION. Accused-Appellants are hereby sentenced to suffer the penalty
of reclusion perpetua without eligibility for parole. Further, in addition to moral
damages awarded by the trial court in the amount of Php 50,000.00, Accused-
Appellants are ordered to pay the heirs of the victim death indemnity in the
increased amount of PhP75,000.00 and exemplary damages in the amount of
PhP30,000.00. All damages awarded shall earn interest at the rate of 6% per
annum from the date of finality of this judgment until fully paid.10

Appellants filed the instant appeal. In a Resolution11 dated 19 November 2014,

appellants and the Office of the Solicitor General (OSG) were asked to file their
respective supplemental briefs if they so desired. Appellants and the OSG
manifested that they would no longer file a Supplemental Brief.12

Appellants contend that conspiracy in the commission of the crime was not
established. Appellants also aver that abuse of superior strength and evident
premeditation were not proven by the prosecution to qualify the crime to murder.

Conspiracy exists when two or more persons come to an agreement concerning

the commission of a felony and decide to commit it. The essence of conspiracy is
the unity of action and purpose. Its elements, like the physical acts constituting
the crime itself, must be proved beyond reasonable doubt. When there is
conspiracy, the act of one is the act of all. Conspiracy can be inferred from and
established by the acts of the accused themselves when said acts point to a joint
purpose and design, concerted action and community of interests. However, in
determining whether conspiracy exists, it is not sufficient that the attack be joint
and simultaneous for simultaneousness does not of itself demonstrate the
concurrence of will or unity of action and purpose which are the bases of the
responsibility of the assailants. What is determinative is proof establishing that
the accused were animated by one and the same purpose.13

The lower courts found conspiracy among the accused. The accused had acted
in concert in barging into the house of the victim. Two men entered through the
front door while three of them used the back door. They jointly attacked Robert
using their bolos. When Robert managed to run out of the house, he was chased
by these men until they caught him and started decapitating his head. The Court
of Appeals correctly found conspiracy in these acts, thus:

x x x Where conspiracy is established, the act of one is the act of all. Here, by the
concurrent acts of Accused-Appellants and Accused Frankie and Christopher of
entering into the house of the victim, simultaneously hacking and stabbing him
and eventually decapitating his head, all are deemed to have agreed to commit
the crime of murder. Each of their contributory acts without semblance of
desistance reflected their resolution to commit the crime.14

The twin qualifying circumstances of abuse of superior strength and evident

premeditation were not considered by the Court of Appeals in imposing the
penalty to be imposed on appellants because the prosecution was not able to
prove them.

Finally, all elements of the crime of Murder were present in this case. As aptly
ruled by the Court of Appeals:

In the case at bench, all of the above mentioned elements of the crime of murder
were proven beyond reasonable doubt by the prosecution. First, it was
established that Robert, the victim, was killed. Second, Accused-Appellants and
Accused Frankie and Christopher killed the victim as testified by the prosecution
witnesses, who saw how the victim was simultaneously hacked and stabbed by
them. Third, the killing was attended by the qualifying circumstance of outraging
or scoffing at the victim's person or corpse. It was established that after the victim
was hacked and stabbed, Accused Frankie decapitated his head and threw the
same in the "lubluban ng kalabaw". It is well-settled that mere decapitation of the
victim's head constitute outraging or scoffing at the corpse of the victim, thus
qualifying the killing to murder. Lastly, the killing of the victim neither constituted
parricide nor infanticide.15 (Emphasis Supplied)

Based on the foregoing, we see no cogent reason to deviate from findings of the
trial court and the Court of Appeals that appellants are guilty of murder. Article
248 of the Revised Penal Code (RPC) states that a person shall be guilty of
murder if committed with the attending circumstance of "cruelty, by deliberately
and inhumanly augmenting the suffering of the victim, or outraging or scoffing at
his person or corpse."

The penalty for murder under Article 248 of the RPC is reclusion perpetua to
death. With the aggravating circumstance of cruelty and no mitigating
circumstance, the penalty imposed should be in its maximum, which is death.
However, in view of Republic Act No. 9346, which was signed into law on 24
June 2006, the penalty imposed must be reduced from death to reclusion
perpetua without eligibility for parole.16

The awards of civil indemnity, moral damages and exemplary damages must be
increased to ₱100,000.00 each in line with prevailing jurisprudence.17
Additionally, temperate damages must be awarded to the heirs of the victim in
the amount of ₱50,000.00 in lieu of actual damages.18 Finally, interest at the rate
of six percent (6%) per annum shall be imposed on all monetary awards from
date of finality of this Resolution until fully paid.

WHEREFORE, the assailed 24 March 2014 Decision of the Court of Appeals in

CA-G.R. CR HC No. 05834 finding appellants ROLITO GERERO y ARMIROL,
ALFIE ESPINOSA y MENDEZ, and RENATO BARTOLOME y JAIME guilty
beyond reasonable doubt of the crime of murder is AFFIRMED with the following
MODIFICATIONS:

1. The awards of civil indemnity, moral damages, and exemplary damages are
increased to ₱100,000.00 each;

2. The heirs of the victim are entitled to temperate damages in the amount of
₱50,000.00;

3. That appellants are not eligible for parole; and

4. All monetary awards shall earn interest at the rate of six percent (6%) per
annum from date of finality of this Resolution until fully paid.
SO ORDERED.

G.R NO. 185209 --EXEMPTING CIRCUMSTANCES OF IRRESISTABLE

FORCE AND/OR UNCONTROLLABLE FEAR OF AN EQUAL OR GREATER
INJURY

People of the Philippines

vs

RENE BARON et. al.

Facts:
At about 9 o’clock in the evening of June 28, 1995 at Hda. Sta. Ana, Brgy.
Burgos, Cadiz City, Negros Occidental, Philippines, the accused Rene Baron,
Rey Villatima, and alias “Dedong” bargo, conspiring, confederating and helping
one another with evident premeditation and treachery and with intent to kill, did
then and there, willfully, unlawfully and feloniously assault, attack and stab to
death one Juanito Berallo in order to rob, steal and take away the latter’s sidecar
and motorcycle, wallet, and wristwatch; and inflicted multiple stabbed wounds
which directly caused the victim’s death.
Appellant, Rene Baron, denied any participation in the crime. He claimed that on
June 28, 1995, at around 7 o’clock in the evening, he bought rice and other
necessities for his family and proceeded to the public transport terminal to get a
ride home where he chanced upon the deceased and his two passengers who
insisted that he came along for the trip. During said trip, the two passengers
announced a hold-up and thereafter tied the driver’s hands and dragged him
towards the sugarcane fields while Baron stayed in the tricycle. Baron was then
accompanied by the two passengers back to his house where he and his wife
were threatened at gunpoint not to report the incident to the authorities.
On February 12, 2002, the trial court rendered a Decision finding the appellant
guilty beyond reasonable doubt of the complex crime of robbery with homicide.
Before the appellate court, appellant alleged that the trial court erred in finding
him guilty as charged and in not appreciating in his favor the exempting
circumstance of irresistible force and/or uncontrollable fear of an equal or greater
injury. However, the same was disregarded by the CA holding that all the
requisites for said circumstances were lacking.

Issue:
Is the appellant entitled to the exempting circumstances of irresistible force
and/or uncontrollable fear of an equal or greater injury?

Held:
No. The appellant’s attempt to evade criminal liability by insisting that he acted
under the impulse of an uncontrollable fear of an equal or greater injury fails to
impress. To avail of this exempting circumstance, the evidence must establish:
(1) the existence of an uncontrollable fear; (2) that the fear must be real and
imminent; and (3) the fear of an injury is greater than or at least equal to that
committed. A threat of future injury is insufficient. The compulsion must be of
such a character as to leave no opportunity for the accused to escape.
The Court found nothing in the records to substantiate appellant’s insistence that
he was under duress from his co-accused in participating in the crime. In fact, the
evidence was to the contrary. Villatima and Bargo dragged the victim towards the
sugarcane field and left the appellant inside the tricycle that was parked by the
roadside. While all alone, he had every opportunity to escape since he was no
longer subjected to a real, imminent or reasonable fear. Surprisingly, he opted to
wait for his co-accused to return and even rode with them to Kabankalan, Negros
Occidental to hide the victim’s motorcycle in the house of Villatima’s aunt.
The appellant had other opportunities to escape since he traveled with his co-
accused for more than 10 hours and passed several transportation terminals.
However, he never tried to escape or at least request for assistance from the
people around him. From the series of proven circumstantial evidence, the
inescapable and natural conclusion was the three accused were in conspiracy
with one another to kill the victim and cart away the motorcycle.

G.R. No. 203961--exempting circumstance of uncontrollable fear--see

digest

G.R NO . 148518 --people vs morales- EXEMPTING CIRCUMSTANCES OF

IRRESISTIBLE FORCE AND/OR UNCONTROLLABLE FEAR OF AN EQUAL
OR GREATER INJURY

FACTS OF THE CASE:

That on or about the 9th day of November, 1994, in the municipality of Bacolor,
province of Pampanga, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating together and
mutually helping one another, did then and there willfully, unlawfully and
feloniously, abduct and kidnap Jefferson C. Tan, Joanna C. Tan, Jessie Anthony
C. Tan, Malou Ocampo and Cesar Quiroz, while the latter were on board a L-300
van with Plate No. CKW-785 at San Vicente, Bacolor, Pampanga, for the purpose
of extorting ransom money from the parents of the said victims with threat to kill
the said victims if their parents failed to deliver the ransom money, that said
victims were brought and detained in Bataan until the father of victims, Feliciano
Tan, paid and delivered to the aforesaid accused the amount of P92,000.00.

ISSUES OF THE CASE:

For this particular case, since 2 appellants are involved, the digest would only
look into the issue of Fernando Morales;

- CAN FERNANDO MORALES BE GRANTED THE EXEMPTING

CIRCUMSTANCES OF IRRESISTIBLE FORCE AND/OR UNCONTROLLABLE
FEAR OF AN EQUAL OR GREATER INJURY

- IF CONSPIRACY WAS PROVEN BEYOND REASONABLE DOUBT

Appellant Arturo Malit contends that the trial court erred in giving weight and
value to the testimonies of prosecution witnesses particularly Jefferson Tan and
his father, Feliciano Tan. He insists that the evidence sufficiently proves that he
was merely forced to join the group at gunpoint.

He also contends that the trial court committed a grave error in relying on the
extrajudicial confession of Narciso Saldaña to prove conspiracy. According to
him, the testimonies of Atty. Eligio Mallari, the counsel who assisted Saldaña,
and Asst. Provincial Prosecutor Roman Razon, before whom the extrajudicial
confession was acknowledged, reveal that at no time was Narciso Saldaña
informed of his constitutional right to counsel of choice. Therefore, the confession
was inadmissible in evidence.

Appellant Fernando Morales similarly maintains that he acted due to an

uncontrollable fear of an equal or greater injury. He argues that Romeo Bautista's
threat against him and appellant Malit constituted a clear and imminent danger to
their lives and instilled fear in them which made them incapable of acting with
deliberate or criminal intent. This fear existed even at the time they received the
ransom from Feliciano Tan because at that time, accused Narciso Saldaña,
Elmer Esguerra, and Romeo Bautista were only one (1) kilometer away. Had he
not joined the group that met Feliciano Tan to get the ransom money as
instructed, or had anything gone wrong at that time, their lives or the lives of their
families would have been endangered.

In addition, appellant Morales submits that conspiracy has not been adequately
proven. Narciso Saldaña's confession, not having been identified in open court, is
inadmissible in evidence. The testimonies of Jefferson Tan and his father,
Feliciano Tan, likewise do not prove conspiracy. These two prosecution
witnesses did not know that he and appellant Malit were subjected to
uncontrollable fear by Saldaña, Esguerra and Bautista.

Appellants' pleas are without sufficient merit. We find no reason to reverse the
trial court's judgment of conviction. A thorough review of the evidence presented
in this case leads to no other conclusion than that the crime of kidnapping for
ransom as defined and penalized in Article 26798 of the Revised Penal Code has
been committed beyond reasonable doubt against the victims Jefferson C. Tan,
Jessie C. Tan, Joanna C. Tan, Malou Ocampo, and Cesar Quiroz.

To begin with, we are not persuaded to overturn the sworn statement of accused
Narciso Saldaña, who admitted his participation in the kidnapping of the victims.
Extrajudicial confessions are presumed to be voluntary, and, in the absence of
conclusive evidence showing that the declarant's consent in executing the same
has been vitiated, the confession will be sustained.99 The fact that it was the
investigating officer, SPO4 Antonio Dizon, who requested Atty. Eligio Mallari to
assist Saldaña does not cast doubt on Atty. Mallari's impartiality during the
custodial investigation. Since there was no available lawyer from the Public
Attorney's Office and Saldaña had expressed his inability to procure the services
of a lawyer, it was incumbent upon the government, particularly the investigating
officer, to provide Saldaña with a lawyer. Moreover, appellants do not cite bias or
incompetence on the part of Atty. Mallari to assist as counsel for the accused
Saldaña. In fact, it clearly appears that Atty. Mallari duly performed his duty to
advise Saldaña on his constitutional rights to silence and to counsel. But Saldaña
insisted on making the extrajudicial confession in the presence of his sister-in-
law, voluntarily. His conviction is in order.

As for accused Elmer Esguerra, we find that the testimonies of prosecution

witnesses Jefferson Tan and Feliciano Tan on his criminal participation in the
kidnapping were fully corroborated by the testimonies of appellants Malit and
Morales. There is no doubt, in our mind, as to his culpability for the crime
charged.

As to herein appellants Morales and Malit, we find here a fit occasion to reiterate
our ruling in the case of People v. Del Rosario.100 Under Article 12 of the
Revised Penal Code, 101 a person is exempt from criminal liability if he acts
under the compulsion of an irresistible force, or under the impulse of an
uncontrollable fear of equal or greater injury, because such person does not act
with freedom.102 In Del Rosario,103 however, we held that for such defense to
prosper the duress, force, fear or intimidation must be present, imminent and
impending, and of such nature as to induce a well-grounded apprehension of
death or serious bodily harm if the act be done. A threat of future injury is not
enough.104

In this case, the evidence on record shows that at the time the ransom money
was to be delivered, appellants Arturo Malit and Fernando Morales,
unaccompanied by any of the other accused, entered the van wherein Feliciano
Tan was. At that time Narciso Saldaña, Elmer Esguerra and Romeo Bautista
were waiting for both appellants from a distance of about one (1) kilometer.[105]
By not availing of this chance to escape, appellants' allegation of fear or duress
becomes untenable.106 We have held that in order that the circumstance of
uncontrollable fear may apply, it is necessary that the compulsion be of such a
character as to leave no opportunity to escape or self-defense in equal
combat.107 Moreover, the reason for their entry to the van, where the father of
the victims was, could be taken as their way of keeping Feliciano Tan under
further surveillance at a most critical time.

Appellant Morales' contention that their families were similarly threatened finds
no support in the evidence. The records are bereft of any showing that such
threats to appellants' families were made at all. We have held in People v.
Borja108 that duress as a valid defense should not be speculative or remote.
Even granting arguendo that Saldaña, Bautista, and Esguerra threatened to
harm appellants' families to coerce appellants to receive the ransom money at
Gumi, Lubao, such threats were not of such imminence as to preclude any
chance of escape. In fact, as already discussed, appellants had a real chance to
escape when they went to Feliciano's van. Under the circumstances, even if true,
the fear that appellants allegedly suffered would not suffice to exempt them from
incurring criminal liability.

Moreover, kidnap victim Jefferson Tan categorically testified that each of the
kidnappers acted of his own accord and that nobody commanded anyone.109
According to Jefferson, while appellant Malit trained the gun on driver Cesar
Quiroz, appellant Morales opened the right-side front door of the van at the same
time that accused Elmer Esguerra took the wheel.110 The trial court found
Jefferson's testimony worthy of credence. It disbelieved appellants' attempts,
while on the witness stand, to put all the blame on co-accused Narciso Saldaña
and Elmer Esguerra who, up to now, remain at large.

Based on the evidence at hand, we find no sufficient reason to disturb the trial
court's assessment of the defense presented by appellants. The crime of
kidnapping is not committed on impulse. It requires meticulous planning to
determine who would be the prospective victim or victims. Its execution needs
precise timing and coordination among the malefactors. It is improbable that a
group of kidnappers would risk the success of their well-planned criminal scheme
by involving unwilling persons, much less strangers, who could abort the
kidnapping by refusing to cooperate in its execution.111 Worse, such unwilling
companions could easily expose their plan to the authorities and subsequently
even testify against them in court. Thus, we find the defense claimed by
appellants neither logical nor satisfactory, much less consistent with human
experience and knowledge. For this reason, we also agree that appellants'
version of the facts is unworthy of credence, in the light of candid testimonies
given by prosecution witnesses.

Moreover, the assessment of the credibility of witnesses and their testimonies is

a matter best undertaken by the trial court, who had a unique opportunity to
observe the witnesses firsthand and to note their demeanor, conduct and
attitude.[112] Findings of the trial court on such matters are binding and
conclusive on the appellate court, unless some facts or circumstances of weight
and substance have been overlooked, misapprehended, or misinterpreted.[113]
As reiterated in numerous cases, a witness who testifies in a clear, positive, and
convincing manner and remains consistent on cross-examination is a credible
witness.[114] This is especially so in this case, since prosecution witnesses
Jefferson Tan and Feliciano Tan were not shown to have any ill motive to testify
against either appellant. When there is no evidence to indicate that the witness
for the prosecution was moved by improper motive, the presumption is that such
motive was absent, and that his testimony is entitled to full faith and credit.[115]

Appellant Arturo Malit's insistence that the trial court's appreciation of the
testimonies by prosecution witnesses was faulty deserves scant consideration.
He failed to specify any reason why the testimonies of prosecution witnesses are
not entitled to full faith and credit. Neither was it shown that their testimonies
materially contradict each other, or that their testimonies were unbelievable and
would not conform to human experience. Against appellant Malit's bare
assertions, we find Jefferson Tan's testimony on the kidnapping straightforward
and consistent even on cross-examination. In contrast, appellants' testimonies
are conflicting. Thus, on one hand, appellant Malit testified that their alleged
captors, their own co-accused, had released him and appellant Morales in
Lubao, Pampanga. On the other hand, appellant Morales declared in his brief
that both of them were present in the van with Feliciano Tan to receive the
ransom. Considering the manner by which the offense was executed and the
ransom collected, we entertain no doubt that appellants were willing participants
in the kidnapping of Florencio Tan's children.

Conspiracy exists when two or more persons come to an agreement concerning

the commission of a felony and decide to commit it.116 Where all the accused
acted in concert at the time of the commission of the offense, and it is shown by
such acts that they had the same purpose or common design and were united in
its execution, conspiracy is sufficiently established.117 It must be shown that all
participants performed specific acts with such closeness and coordination as to
indicate a common purpose or design to commit the felony.118

In the present case, the evidence shows that all the accused waited near a
damaged portion of the highway in San Vicente, Bacolor, Pampanga. Said spot
was chosen deliberately because the van in which they expected the victims to
be would logically slow down to avoid the damaged part of the road. Appellant
Arturo Malit poked a gun at the driver to stop the vehicle and enable appellant
Fernando Morales and their co-accused, Elmer Esguerra and Narciso Saldaña,
to board the vehicle.[119] While appellant Malit had his gun still trained on the
driver, Esguerra took over the wheel while the others including appellant
Fernando Morales blindfolded the occupants of the van.

When Romeo Bautista and Narciso Saldaña accompanied Jefferson Tan to

Balanga, Bataan, to arrange for the delivery of the ransom, appellants Arturo
Malit and Fernando Morales with their co-accused Elmer Esguerra, guarded the
victims. Appellants attended to the needs of the victims. At the bridge in Sta.
Cruz, Lubao, appellants gave Feliciano Tan additional instructions to proceed to
Gumi where Elmer Esguerra waited with the children. There, appellant Malit
received the ransom and Esguerra handed the keys to the van where the
children were. These acts point to a close coordination indicating a common
purpose or design to commit the felony of kidnapping for ransom. The
circumstances under which appellants Malit and Morales participated in the
commission of the kidnapping for ransom would not justify in any way their
belated claim that they acted under an uncontrollable fear of being killed by the
other kidnappers. Rather, these circumstances establish the fact that appellants
consciously concurred with the acts of the other malefactors to kidnap the
children of Feliciano Tan.

Appellant Malit stresses that he did not try to escape from jail during the height of
the lahar flow in Pampanga on October 9, 1995. This is proof, according to him,
that he was innocent of the crime charged.120 But this argument is untenable, an
obvious non-sequitur. It is true that flight has been held to be an admission of
guilt yet it is also well settled that non-flight is not proof, much less conclusive
proof, of innocence.121

Appellant Malit also faults the prosecution for not presenting driver Cesar
Quiroz's affidavit, which fails to name him (appellant Malit) as one of the
abductors.122 Similarly, he assails the trial court's order denying his motion for
new trial based on newly discovered evidence.

As held by the trial court, however, appellant Malit's contentions are unfounded.
The matter of presentation of witnesses by the prosecution is not for appellant or
even the trial court to decide.123 Section 5,124 Rule 110 of the Rules of Court
expressly vests in the prosecutor the direction and control over the prosecution of
a case. The determination of which evidence to present rests upon him. As the
prosecution had other witnesses who could sufficiently prove the kidnapping for
ransom, it could dispense with the evidence to be provided by Cesar Quiroz.

Appellant Malit's insistence that the trial court erroneously denied him his right to
new trial to present the testimony of Cesar Quiroz is likewise without merit. A
motion for new trial based on newly discovered evidence may only be granted if
the following concur: (a) the evidence is discovered after trial; (b) such evidence
could not have been discovered and produced at the trial even with the exercise
of reasonable diligence; and (c) the evidence is material, not merely cumulative,
corroborative, or impeaching and of such weight that, if admitted, could probably
change the judgment.125

In this case, the records show that even before the trial, the "Sinumpaang
Salaysay" of Cesar Quiroz dated November 18, 1994 was already available to
appellant Malit. In fact, during the inquest investigation, appellant Malit opted for
a preliminary investigation. As early as that stage, Cesar Quiroz as well as his
salaysay was already available and by reasonable diligence could have been
obtained, discovered, and produced at the trial. The records are bereft of any
showing that appellant Malit exerted efforts to secure the attendance of Cesar
Quiroz for the purpose of using him as defense witness.

For this Court to allow a motion for new trial on grounds other than those
provided in Section 2,126 Rule 121 of the Rules of Court,127 the movant must
cite peculiar circumstances obtaining in the case sufficient to warrant a new trial,
if only to give the accused an opportunity to establish his innocence of the crime
charged. Appellant Malit, however, does not cite any exceptional circumstance. In
any case, we scrutinized the contents of Quiroz's affidavit, but nowhere does it
categorically declare that appellant Malit did not participate in the commission of
the crime. Under the circumstances, the trial court properly denied his motion for
new trial.

The elements of the crime of kidnapping and serious illegal detention are the
following: (a) the accused is a private individual; (b) the accused kidnaps or
detains another, or in any manner deprives the latter of his liberty; (c) the act of
detention or kidnapping is illegal; and (d) in the commission of the offense, any of
the four circumstances mentioned in Article 267128 of the Revised Penal Code
are present. The imposition of the death penalty is mandatory if the kidnapping
was committed for the purpose of extorting ransom. In the instant case,
appellants cannot escape the penalty of death, inasmuch as it was sufficiently
alleged and indubitably proven that the kidnapping had been committed for the
purpose of extorting ransom.129

Three (3) members of this Court, although maintaining their adherence to the
separate opinion expressed in People v. Echegaray, G.R. No. 117472, February
7, 1997, 267 SCRA 682, that R.A. 7659, insofar as it prescribes the penalty of
death is unconstitutional, nevertheless submit to the ruling of the majority that the
law is constitutional, and that the death penalty should accordingly be imposed.

As to the award of damages, aside from the ₱92,000 in actual damages which
represent the amount of the ransom money Feliciano Tan paid to appellants and
their cohorts, exemplary damages in the amount of ₱25,000 should be paid by
the appellants and their co-accused to the victims, by way of public example and
to serve as a deterrent against malefactors who prey on children and other
defenseless victims.

WHEREFORE, the Decision dated February 2, 1999, of the Regional Trial Court
of San Fernando, Pampanga, Branch 47, in Criminal Case No. 8371, finding
accused NARCISO SALDAÑA and ELMER ESGUERRA and appellants
FERNANDO MORALES and ARTURO MALIT GUILTY beyond reasonable doubt
of the crime of kidnapping for ransom and sentencing each of them to death is
hereby AFFIRMED. They are likewise ordered to pay, jointly and severally, actual
damages in the amount of ₱92,000.00 representing the amount of ransom paid
by the victims' father, as well as the sum of ₱25,000.00 as exemplary damages.

Let alias warrants issue for the immediate arrest by the NBI and the PNP of
accused Narciso Saldaña and Elmer Esguerra, now at large.

In accordance with Section 25 of Republic Act No. 7659 amending Section 83 of

the Revised Penal Code, let the records of this case be forthwith forwarded, upon
finality of this decision, to the Office of the President for the possible exercise of
the pardoning power.

SO ORDERED.

G.R NO 127755--EXEMPTING CIRCUMSTANCE

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSELITO DEL ROSARIO y PASCUAL, accused-appellant.

BELLOSILLO, J

ON AUTOMATIC REVIEW is the decision of the court a quo finding accused

Joselito del Rosario y Pascual guilty as co-principal in the crime of Robbery with
Homicide and sentencing him to death, and to pay the heirs of victim Virginia
Bernas P550,000.00 as actual damages and P100,000.00 as moral and
exemplary damages.1

Joselito del Rosario y Pascual, Ernesto Marquez alias "Jun," Virgilio Santos alias
"Boy Santos" and John Doe alias "Dodong" were charged with the special
complex crime of Robbery with Homicide for having robbed Virginia Bernas, a
66-year old businesswoman, of P200,000.00 in cash and jewelry and on the
occasion thereof shot and killed her.2

While accused Joselito del Rosario pleaded not guilty, 3 Virgilio "Boy" Santos and
John Doe alias "Dodong" remained at large. Ernesto "Jun" Marquez was killed in
a police encounter. Only Joselito del Rosario was tried.

These facts were established by the prosecution from the eyewitness account of
tricycle driver Paul Vincent Alonzo: On 13 May 1996 between 6:00 and 6:30 in
the evening, Alonzo stopped his tricycle by the side of Nita's Drugstore, General
Luna St., Cabanatuan City, when three women flagged him. Parked at a distance
of about one and a-half (1 1/2) meters in front of him was a tricycle driven by
accused Joselito del Rosario. At that point, Alonzo saw two (2) men and a
woman grappling for possession of a bag. After taking hold of the bag one of the
two men armed with a gun started chasing a man who was trying to help the
woman, while the other snatcher kicked the woman sending her to the ground.
Soon after, the armed man returned and while the woman was still on the ground
he shot her on the head. The bag taken by the man was brought to the tricycle of
accused del Rosario where someone inside received the bag. The armed man
then sat behind the driver while his companion entered the sidecar. When the
tricycle sped away Alonzo gave chase and was able to get the plate number of
the tricycle. He also recognized the driver, after which he went to the nearest
police headquarters and reported the incident.4

Accused Joselito del Rosario gave his own version of the incident: At around
5:30 in the afternoon he was hired for P120.005 by a certain "Boy" Santos,6 his
co-accused. Their original agreement was that he would drive him to a cockpit at
the Bias Edward Coliseum.7 However despite their earlier arrangement Boy
Santos directed him to proceed to the market place to fetch "Jun" Marquez and
"Dodong" Bisaya. He (del Rosario) acceded.8 Marquez and Bisaya boarded in
front of the parking lot of Merced Drugstore at the public market.9 Subsequently,
he was asked to proceed and stop at the corner of Burgos and General Luna Sts.
where Bisaya alighted on the pretext of buying a cigarette. The latter then
accosted the victim Virginia Bernas and grappled with her for the possession of
her bag. Jun Marquez alighted from the tricycle to help "Dodong" Bisaya. 10
Accused del Rosario tried to leave and seek help but "Boy Santos" who stayed
inside the tricycle prevented him from leaving and threatened in fact to shoot him.

Meanwhile, "Dodong" Bisaya succeeded in taking the victim's bag, but before
boarding the tricycle "Jun" Marquez mercilessly shot the victim on the head while
she was lying prone on the ground. After the shooting, "Dodong" Bisaya boarded
the sidecar of the tricycle while "Jun" Marquez rode behind del Rosario and
ordered him to start the engine and drive towards Dicarma. While inside his
tricycle, del Rosario overheard his passengers saying that they would throw the
bag at Zulueta St. where there were cogon grasses. 11 Upon arriving at Dicarma,
the three (3) men alighted and warned del Rosario not to inform the police
authorities about the incident otherwise he and his family would be harmed. 12
Del Rosario then went home. 13 Because of the threat, however, he did not
report the matter to the owner of the tricycle nor to the barangay captain and the
police. 14

As earlier stated, the court a quo found accused Joselito del Rosario guilty as
charged and sentenced him to death. He now contends in this automatic review
that the court a quo erred in: (1) Not finding the presence of threat and irresistible
force employed upon him by his co-accused Virgilio "Boy" Santos, Ernesto "Jun"
Marquez and "Dodong" Bisaya; (2) Not considering his defense that he was not
part of the conspiracy among co-accused "Boy" Santos, "Jun" Marquez and
"Dodong" Bisaya to commit the crime of Robbery with Homicide; (3) Not
considering the violations on his constitutional rights as an accused; and, (4) Not
considering that there was no lawful warrantless arrest within the meaning of
Sec. 5, Rule 113, of the Rules of Court. 15

The conviction of del Rosario must be set aside. His claim for exemption from
criminal liability under Art. 12, par. 5, Revised Penal Code as he acted under the
compulsion of an irresistible force must be sustained. He was then unarmed and
unable to protect himself when he was prevented at gunpoint by his co-accused
from leaving the crime scene during the perpetration of the robbery and killing,
and was only forced to help them escape after the commission of the crime. 16

But the trial court ruled that his fear was merely speculative, fanciful and remote,
hence, could not be considered uncontrollable; and that a gun pointed at him did
not constitute irresistible force because it fell short of the test required by law and
jurisprudence. 17

We disagree. A person who acts under the compulsion of an irresistible force, like
one who acts under the impulse of an uncontrollable fear of equal or greater
injury, is exempt from criminal liability because he does not act with freedom.
Actus me invito factus non est meus actus. An act done by me against my will is
not my act. The force contemplated must be so formidable as to reduce the actor
to a mere instrument who acts not only without will but against his will. The
duress, force, fear or intimidation must be present, imminent and impending, and
of such nature as to induce a well-grounded apprehension of death or serious
bodily harm if the act be done. A threat of future injury is not enough. The
compulsion must be of such a character as to leave no opportunity for the
accused for escape or self-defense in equal combat. 18

As a rule, it is natural for people to be seized by fear when threatened with

weapons, even those less powerful than a gun, such as knives and clubs. People
will normally, usually and probably do what an armed man asks them to do,
nothing more, nothing less. In the instant case, del Rosario was threatened with
a gun. He could not therefore be expected to flee nor risk his life to help a
stranger. A person under the same circumstances would be more concerned with
his personal welfare and security rather than the safety of a person whom he
only saw for the first time that day. 19

Corollary with the defense of del Rosario, we hold that the trial court erred when
it said that it was "Boy" Santos who left the tricycle to chase the companion of the
victim and then shot the victim on the head, instantly killing her. 20 A careful and
meticulous scrutiny of the transcripts and records of the testimonies of witness
Alonzo and del Rosario himself, reveals that it was "Jun" Marquez who ran after
the victim's helper and fired at the victim. Witness Alonzo testified on direct
examination —
Del Rosario maintains that "Boy" Santos never left the tricycle and that the latter
pointed his gun at him and threatened to shoot if he tried to escape. He also
asserts that it was "Jun" Marquez who shot the victim and sat behind him in the
tricycle.

From the narration of witness Alonzo, these events stood out: that after the bag
of the victim was grabbed, her male helper was chased by a man holding a gun;
that the gunwielder returned and shot the victim and then sat behind the driver of
the tricycle; and, that the bag was given to a person who was inside the tricycle.
Taking the testimony of witness Alonzo in juxtaposition with the testimony of del
Rosario, it can be deduced that "Jun" Marquez was the person witness Alonzo
was referring to when he mentioned that a helper of the lady was chased "by the
other man," and that this "other man" could not be "Boy" Santos who stayed
inside the tricycle and to whom the bag was handed over. This conclusion gives
credence to the claim of del Rosario that "Boy" Santos never left the tricycle, and
to his allegation that "Boy" Santos stayed inside the tricycle precisely to threaten
him with violence and to prevent him from fleeing; that there could have been no
other plausible reason for "Boy" Santos to stay in the tricycle if the accused was
indeed a conspirator; that "Boy" Santos could have just left the tricycle and
helped in the commission of the crime, particularly when he saw the victim
grappling with "Dodong" Bisaya and resisting the attempts to grab her bag; and,
that "Boy" Santos opted to remain inside the tricycle to fulfill his preordained role
of threatening del Rosario and insuring that he would not escape and leave them
behind. 27

Even if the tricycle of del Rosario was only parked one meter and a half (1-1/2) in
front of the tricycle of witness Alonzo, the latter still could not have totally seen
and was not privy to events that were transpiring inside the vehicle, i.e., the
pointing of the gun by "Boy" Santos at del Rosario simultaneously with the
robbing and shooting of the victim. From the exhibits submitted by the
prosecution panel the back of the sidecar of del Rosario tricycle was not
transparent. 28

There is no doubt that the fear entertained by del Rosario because of the gun
directly pointed at him was real and imminent. Such fear rendered him immobile
and subject to the will of Boy Santos, making him for the moment an automaton
without a will of his own. In other words, in effect, he could not be any more than
a mere instrument acting involuntarily and against his will. He is therefore exempt
from criminal liability since by reason of fear of bodily harm he was compelled
against his will to transport his co-accused away from the crime scene.

On the issue of conspiracy, the trial court anchored del Rosario's conviction on
his participation in the orchestrated acts of "Boy" Santos, "Jun" Marquez and
"Dodong" Bisaya. According to the trial court, del Rosario facilitated the escape
of the other malefactors from the crime scene and conspiracy between accused
and his passengers was evident because "while the grappling of the bag, the
chasing of the helper of the victim and the shooting that led to the death of
Virginia Bernas were happening, accused Joselito del Rosario was riding on his
tricycle and the engine of the motor was running;" 29 that the "accused did not
deny that the tricycle driven by him and under his control was hired and used by
his co-accused in the commission of the crime; neither did he deny his failure to
report to the authorities the incident of robbery, killing and fleeing away from the
scene of the crime." 30

We disagree with the trial court. A conspiracy in the statutory language exists
when two or more concerning the commission of a felony and decide to commit
it. The objective of the conspirators is to perform an act or omission punishable
by law. That must be their intent. There is need for "concurrence of wills" or "unity
of action and purpose" or for "common and joint purpose and design." Its
manifestation could be shown by "united and concerted action." 31

Admittedly, direct proof is not essential to establish conspiracy. Since by its

nature conspiracy is planned in utmost secrecy, it can rarely be proved by direct
evidence. Consequently, the presence of the concurrence of minds which is
involved in conspiracy may be inferred from proof of facts and circumstances
which, taken together, apparently indicate that they are merely parts of some
complete whole. If it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part so
that their combined acts, though apparently independent, were in fact connected
and cooperative, indicating a closeness of personal association and a
concurrence of sentiment, a conspiracy may be inferred though no actual
meeting among them to concert means is proved. That would be termed an
implied conspiracy. 32 Nevertheless, mere knowledge, acquiescence or approval
of the act, without the cooperation or agreement to cooperate, is not enough to
constitute one a party to a conspiracy, but that there must be intentional
participation in the transaction with a view to the furtherance of the common
design and purpose. Conspiracy must be established, not by conjectures, but by
positive and conclusive evidence. In fact, the same degree of proof necessary to
establish the crime is required to support a finding of the presence of a criminal
conspiracy, which is, proof beyond reasonable doubt. 33

In the instant case, while del Rosario admits that he was at the locus criminis as
he was the driver of the getaway vehicle, he nonetheless rebuts the imputation of
guilt against him by asserting that he had no inkling of the malevolent design of
his co-accused to rob and kill since he was not given any briefing thereof. He
was merely hired by Boy Santos to drive to an agreed destination and he was
prevented at gunpoint from leaving the scene of the crime since he was ordered
to help them escape.

In this case, the trial court stated that "there is no evidence that the accused
came to an agreement concerning the commission of the felony and decided to
commit the same." 34 Therefore, in order to convict the accused, the presence of
an implied conspiracy is required to be proved beyond reasonable doubt.
However, the fact that del Rosario was with the other accused when the crime
was committed is insufficient proof to show cabal. Mere companionship does not
establish conspiracy. 35 The only incriminating evidence against del Rosario is
that he was at the scene of the crime but he has amply explained the reason for
his presence and the same has not been successfully refuted by the prosecution.
As stated earlier, he feared for his safety and security because of the threat
made by his co-accused that he would be killed should he shout for help. No
complicity can be deduced where there is absolutely no showing that the
accused directly participated in the overt act of robbing and shooting although he
was with the persons who robbed and killed the victim. 36

That del Rosario did not disclose what he knew about the incident to the
authorities, to his employer or to the barangay captain does not affect his
credibility. The natural hesitance of most people to get involved in a criminal case
is of judicial notice. 37 It must be recalled that del Rosario was merely a tricycle
driver with a family to look after. Given his quite limited means, del Rosario
understandably did not want to get involved in the case so he chose to keep his
silence. Besides, he was threatened with physical harm should he squeal.

Del Rosario further contends that there was violation of his right to remain silent,
right to have competent and independent counsel preferably of his own choice,
and right to be informed of these rights as enshrined and guaranteed in the Bill of
Rights. 38 As testified to by SPO4 Geronimo de Leon, the prosecution witness
who was the team leader of the policemen who investigated the 13 May incident,
during his cross-examination —

Upon finding the name of the owner of the tricycle, they proceeded to Bakod
Bayan in the house of the barangay captain where the owner of the tricycle was
summoned and who in turn revealed the driver's name and was invited for
interview. The driver was accused Joselito del Rosario who volunteered to name
his passengers on May 13, 1996. On the way to the police station, accused
informed them of the bag and lunch kit's location and the place where the hold-
uppers may be found and they reported these findings to their officers, Capt.
Biag and Capt. Cruz. After lunch, they proceeded to Brgy. Dicarma composed of
15 armed men where a shoot-out transpired that lasted from 1:00 to 4:00 o'clock
in the afternoon. After a brief encounter, they went inside the house where they
found Marquez dead holding a magazine and a gun. While all of these were
happening, accused del Rosario was at the back of the school, after which they
went back to the police station. The investigator took the statement of the
accused on May 14, 1996, and was only subscribed on May 22, 1996. All the
while, he was detained in the police station as ordered by the Fiscal. His
statements were only signed on May 16, 1996. He also executed a waiver of his
detention. His Sinumpaang Salaysay was done with the assistance of Ex-Judge
Talavera. 39

A further perusal of the transcript reveals that during the encounter at Brgy.
Dicarma, del Rosario was handcuffed by the police because allegedly they had
already gathered enough evidence against him and they were afraid that he
might attempt to escape. 40

Custodial investigation is the stage where the police investigation is no longer a

general inquiry into an unsolved crime but has begun to focus on a particular
suspect taken into custody by the police who carry out a process of interrogation
that lends itself to elicit incriminating statements. It is well-settled that it
encompasses any question initiated by law enforces after a person has been
taken into custody or otherwise deprive of his freedom of action in any significant
way. 41 This concept of custodial investigation has been broadened by RA 7438
42 to include "the practice of issuing an "invitation" to a person who is
investigated in connection with an offense he is suspected to have committed."
Section 2 of the same Act further provides that —

. . . . Any public officer or employee, or anyone acting under his order or in his
place, who arrests, detains or investigates any person for the commission of an
offense shall inform the latter, in a language known and understood by him, of his
right to remain silent and to have competent and independent counsel, preferably
of his own choice, who shall at all times be allowed to confer privately with the
person arrested, detained or under custodial investigation. If such person cannot
afford the services of his own counsel, he must be provided with a competent
and independent counsel by the investigating officer.

From the foregoing, it is clear that del Rosario was deprived of his rights during
custodial investigation. From the time he was "invited" for questioning at the
house of the baranggay captain, he was already under effective custodial
investigation, but he was not apprised nor made aware thereof by the
investigating officers. The police already knew the name of the tricycle driver and
the latter was already a suspect in the robbing and senseless slaying of Virginia
Bernas. Since the prosecution failed to establish that del Rosario had waived his
right to remain silent, his verbal admissions on his participation in the crime even
before his actual arrest were inadmissible against him, as the same transgressed
the safeguards provided by law and the Bill of Rights.

Del Rosario also avers that his arrest was unlawful since there was no warrant
therefor. Section 5, Rule 113 of the Rules of provides: 43

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private

person may, without a warrant, arrest a person: (a) When, in his presence, the
person to be arrested has committed, is actually committing, or is attempting to
commit an offense; (b) When an offense has in fact been committed and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and, (c) When the person to be arrested is a prisoner who has
escaped from penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.

It must be recalled that del Rosario was arrested by SPO4 De Leon during the
police raid at the place of "Jun" Marquez at Brgy. Dicarma on 14 May 1996. In
People vs. Sucro 44 we held that when a police officer sees the offense, although
at a distance, or hears the disturbances created thereby, and proceeds at once to
the scene thereof, he may effect an arrest without a warrant on the basis of Sec.
5, par. (a), Rule 113, since the offense is deemed committed in his presence or
within his view. In essence, Sec. 5, par. (a), Rule 113, requires that the accused
be caught in flagrante delicto or caught immediately after the consummation of
the act. The arrest of del Rosario is obviously outside the purview of the
aforequoted rule since he was arrested on the day following the commission of
the robbery with homicide.

On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent
requirements before a warrantless arrest can be effected: (1) an offense has just
been committed; and, (2) the person making the arrest has personal knowledge
of facts indicating that the person to be arrested had committed it. Hence, there
must be a large measure of immediacy between the time the offense was
committed and the time of the arrest, and if there was an appreciable lapse of
time between the arrest and the commission of the crime, a warrant of arrest
must be secured. Aside from the sense of immediacy, it is also mandatory that
the person making the arrest must have personal knowledge of certain facts
indicating that the person to be taken into custody has committed the crime. 45
Again, the arrest of del Rosario does not comply with these requirements since,
as earlier explained, the arrest came a day after the consummation of the crime
and not immediately thereafter. As such, the crime had not been "just committed"
at the time the accused was arrested. Likewise, the arresting officers had no
personal knowledge of facts indicating that the person to be arrested had
committed the offense since they were not present and were not actual
eyewitnesses to the crime, and they became aware of his identity as the driver of
the getaway tricycle only during the custodial investigation.

However, the conspicuous illegality of del Rosario's arrest cannot affect the
jurisdiction of the court a quo because even in instances not allowed by law, a
warrantless arrest is not a jurisdictional defect and any objection thereto is
waived when the person arrested submits to arraignment without any objection,
as in this case. 46

A transgression of the law has occurred. Unfortunately, an innocent person lost

her life and property in the process. Someone therefore must be held
accountable, but it will not be accused Joselito del Rosario; we must acquit him.
Like victim Virginia Bernas, he too was a hapless victim who was forcibly used by
other persons with nefarious designs to perpetrate a dastardly act. Del Rosario's
defense of "irresistible force" has been substantiated by clear and convincing
evidence. On the other hand, conspiracy between him and his co-accused was
not proved beyond a whimper of a doubt by the prosecution, thus clearing del
Rosario of any complicity in the crime charged.

WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City

convicting accused JOSELITO DEL ROSARIO Y PASCUAL of Robbery with
Homicide and sentencing him to death, is REVISED and SET ASIDE, and the
accused is ACQUITTED of the crime charged. His immediate RELEASE from
confinement is ordered unless held for some other lawful cause. In this regard,
the Director of Prisons is directed to report to the Court his compliance herewith
within five (5) days from receipt hereof.1âwphi1.nêt

SO ORDERED.
G.R NO 175482-- justifying circumstance of obedience to a superior order

RUPERTO A. AMBIL, JR. vs SANDIGANBAYAN, G.R. No. 175482, July 6, 2011

FACTS: An information was filed before the Ombudsman against herein

petitioners Ambil and Apelado, then governor of Eastern Samar and Provincial
Jail Warden of Eastern Samar ,respectively, for allegedly ordering and causing
the release from the Provincial Jail of detention prisoner Mayor Francisco Adalim
in violation of Section 3(e) of R.A. No. 3019. At the pre-trial, petitioner admitted
the allegations in the Information reasoning however that Adalim’s transfer was
justified considering the imminent threats upon his person and the dangers
posed by his detention at the provincial jail. After trial, the Sandiganbayan found
them guilty of the offense charged.
Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern
Samar. He recalls that on September 6, 1998, SPO3 Felipe Balano fetched him
at home to assist in the arrest of Mayor Adalim. Allegedly, Atty. White was
contesting the legality of Mayor Adalim’s arrest and arguing with the jail guards
against booking him for detention. At the provincial jail, petitioner was confronted
by Atty. White who informed him that he was under the governor, in the latter’s
capacity as a provincial jailer. Petitioner claims that it is for this reason that he
submitted to the governor’s order to relinquish custody of Adalim.

ISSUE:Meanwhile, petitioner Apelado, Sr.’s assignment of errors can be

condensed into two: (1) Whether he is guilty beyond reasonable doubt of
violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to the
justifying circumstance of obedience to an order issued by a superior for some
lawful purpose under Article 11(6)25 of the RPC.

In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of

obedience to an order issued for some lawful purpose. Under paragraph 6,
Article 11 of the RPC, any person who acts in obedience to an order issued by a
superior for some lawful purpose does not incur any criminal liability. For this
justifying circumstance to apply, the following requisites must be present: (1) an
order has been issued by a superior; (2) such order must be for some lawful
purpose; and (3) the means used by the subordinate to carry out said order is
lawful.51 Only the first requisite is present in this case.

While the order for Adalim’s transfer emanated from petitioner Ambil, Jr., who
was then Governor, neither said order nor the means employed by petitioner
Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial Jail
Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor Adalim at the
provincial jail and, unarmed with a court order, transported him to the house of
petitioner Ambil, Jr. This makes him liable as a principal by direct participation
under Article 17(1)52 of the RPC.

An accepted badge of conspiracy is when the accused by their acts aimed at the
same object, one performing one part of and another performing another so as to
complete it with a view to the attainment of the same object, and their acts
although apparently independent were in fact concerted and cooperative,
indicating closeness of personal association, concerted action and concurrence
of sentiments.53

Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.’s willful

cooperation in executing petitioner Ambil, Jr.’s order to move Adalim from jail,
despite the absence of a court order. Petitioner Apelado, Sr., a law graduate,
cannot hide behind the cloak of ignorance of the law. The Rule requiring a court
order to transfer a person under detention by legal process is elementary. Truth
be told, even petitioner governor who is unschooled in the intricacies of the law
expressed reservations on his power to transfer Adalim. All said, the concerted
acts of petitioners Ambil, Jr. and Apelado, Sr. resulting in the violation charged,
makes them equally responsible as conspirators.

As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No. 3019
punishes a public officer or a private person who violates Section 3 of R.A. No.
3019 with imprisonment for not less than six (6) years and one (1) month to not
more than fifteen (15) years and perpetual disqualification from public office.
Under Section 1 of the Indeterminate Sentence Law or Act No. 4103, as
amended by Act No. 4225, if the offense is punished by a special law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and the minimum shall not
be less than the minimum term prescribed by the same.1avvphi1

Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of
imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12)
years and four (4) months is in accord with law. As a co-principal without the
benefit of an incomplete justifying circumstance to his credit, petitioner Apelado,
Sr. shall suffer the same penalty.

G.R NO 175457--SAME AS PREVIOUS CASE

G.R NO 193507-- privileged mitigating circumstance -MINORITY

PEREZ, J.:

This is an appeal from the Decision1 of the Court of Appeals in CA-G.R. CR-HC
No. 00457 dated 3 December 2009 affirming in toto the Decision2 of Branch 19
of the Regional Trial Court (RTC) of Catarman, Northern Samar, in Criminal Case
No. C-3460 dated 18 October 2005 finding herein appellant Rey Monticalvo y
Magno guilty beyond reasonable doubt of the crime of rape of a demented
person committed against AAA,3 thereby imposing upon him the penalty of
reclusion perpetua and ordering him to pay P50,000.00 as civil indemnity,
P50,000.00 as moral damages and P25,000.00 as exemplary damages.

Appellant Rey Monticalvo y Magno was charged with raping AAA in an

Information4 dated 30 April 2003, the accusatory portion of which reads:

That on or about the 9th day of December 2002 at about 7:00 o’clock in the
evening in Bgy. XXX, Municipality of XXX, Province of XXX, Philippines and
within the jurisdiction of this Honorable Court, the above-named appellant,
actuated by lust and with lewd design, with force and intimidation, did, then and
there, willfully, unlawfully and feloniously have carnal knowledge with AAA, 12
years old and is suffering from mental disorder or is demented or has mental
disability, without the consent and against the will of said victim.5 [Emphasis
supplied].

On arraignment, appellant, with the assistance of counsel de oficio, pleaded NOT

GUILTY6 to the crime charged.

At the pre-trial conference, the prosecution and the defense failed to make any
stipulation of facts.7 The pre-trial conference was then terminated and trial on the
merits thereafter ensued.

The prosecution presented the following witnesses: (1) AAA, the private offended
party; (2) BBB, mother of AAA; (3) Analiza Pait (Analiza), neighbor and friend of
AAA; (4) Dr. Jesus Emmanuel Nochete (Dr. Nochete), Medical Officer IV,
Northern Samar Provincial Hospital; and (5) Dr. Vincent Anthony M. Belicena (Dr.
Belicena), Medical Specialist II, Northern SamarProvincial Hospital. Their
testimonies established the following facts:

AAA is a mental retardate and was 12 years and 11 months old at the time of the
rape incident.8 She and appellant, who was then 17 years old,9 are neighbors −
their respective houses are adjoining each other.10

In the afternoon of 9 December 2002, AAA and her friend, Analiza, were in front
of the sari-sari store of AAA’s mother, BBB, while appellant was inside the fence
of their house adjacent to the said sari-sari store. Shortly, thereafter, appellant
invited AAA to go with him to the kiln at the back of their house. AAA acceded
and went ahead.11

Upon seeing appellant and AAA going to the kiln, Analiza, pretending to look for
her one peso coin, followed them until she reached a papaya tree located three
and a half meters away from the place. Analiza hid under the papaya tree and
from there she saw appellant undress AAA by removing the latter’s shorts and
panty. Appellant, however, glanced and saw Analiza. Frightened, Analiza ran
away and went back to the sari-sari store of BBB without telling BBB what she
saw.12

Appellant proceeded to satisfy his bestial desire. After undressing AAA, appellant
made her lie down. He then placed himself on top of AAA and made push and
pull movements. Afterwards, appellant stopped, allowed AAA to sit down for a
while and then sent her home.13

When AAA arrived at their house around 7:30 p.m., she was asked by her
mother, BBB, where she came from and why she came home late. AAA replied
that she was at the back of their house as appellant brought her there and had
sexual intercourse with her.14

The following day, BBB brought AAA to the police station and then to the
Northern Samar Provincial Hospital where AAA was examined by Dr. Nochete.15
The medical examination yielded the following:

The findings are:

= Confluent abrasion 1 x 1 inches, 2 inches below the umbilicus.

Genitalia Exam:

= Admits 1 finger with ease.

= (-) vulvar swelling, (-) erythema.

= (+) complete healed hymenal laceration at 5 o’clock, 7 o’clock & 10 o’clock

position.

Gram Stain Result: Negative for spermatozoa.16

Dr. Nochete explained that AAA could have possibly sustained those complete
healed hymenal lacerations more than a month prior to the date of the
examination. He also clarified that even though AAA has no fresh hymenal
laceration it does not necessarily mean that no sexual intercourse was committed
on her on 9 December 2002. It is possible that AAA did not sustain any fresh
hymenal laceration because the vaginal canal has become loose. He did not also
find any trace of spermatozoa on AAA’s vagina, its presence being dependent on
whether the appellant did ejaculate or not.17

AAA was also examined by Dr. Belicena, a Psychiatrist at the Northern Samar
Provincial Hospital, who found that AAA is suffering from moderate to severe
mental retardation, meaning, AAA is suffering from the specific form of below
average intelligence that has a low reproduction functioning resulting in impaired
functioning. This finding was obtained through mental examination and actual
interview of AAA. Dr. Belicena, however, recommended a full battery of
psychological testing to determine AAA’s exact mental age.18 Dr. Belicena’s
finding was reduced into writing as evidenced by a Medical Certificate19 dated
18 May 2004.

For its part, the defense offered the testimonies of (1) Pio Campos (Pio),
neighbor and friend of appellant; (2) Cesar Monticalvo (Cesar), appellant’s father;
(3) Alexander Sanico (Alexander), Local Civil Registrar of Bobon, Northern
Samar; and (4) appellant, who invoked the defense of denial and alibi to
exonerate himself from the crime charged.

Appellant denied having raped AAA. He claimed that on 9 December 2002, at

around 1:00 p.m., he, together with Pio and a certain Dinnes Samson, was
having a drinking spree in the house of one Adolfo Congayao (Adolfo). They
finished drinking at around 6:00 p.m. As he was too drunk, Pio assisted him in
going home. He went to sleep and woke up only at 12:00 midnight as he needed
to urinate. He went back to sleep and woke up at 6:00 a.m. of the following day,
i.e., 10 December 2002. He was surprised that AAA charged him with rape. He
was then arrested at around 3:00 p.m. of 10 December 2002.20

Appellant disclosed, however, that the house of Adolfo, where they had their
drinking spree, is more or less six (6) meters away from the house of AAA. In
fact, he could still see the house of AAA even when he was in the house of
Adolfo. He similarly admitted that he knew very well that AAA is suffering from
mental abnormalities. He also divulged that he asked Pio to testify on his
behalf.21

Appellant’s testimony was corroborated on all material points by Pio and his
father, Cesar, who also admitted that he personally knew AAA as she is their
neighbor. Cesar also knew that AAA is suffering from mental disorder.22 Both Pio
and Cesar confirmed that on 9 December 2002, they brought appellant to his
bedroom and let him sleep there because he was too drunk. Thereafter, Pio and
Cesar engaged in a drinking spree inside the latter’s house, particularly at the
kitchen that is more than two (2) meters away from appellant’s bedroom, which
lasted until 11:00 p.m. Pio and Cesar likewise stated that there was no moment
that appellant went out of his bedroom since the time they brought him there.23

Alexander, another defense witness, presented appellant’s Certificate of Live

Birth24 to prove that the latter was only 17 years old during the commission of
the crime, i.e., 9 December 2002.25

The trial court, convinced about the merits of the prosecution’s case rendered a
Decision on 18 October 2005, finding the appellant guilty beyond reasonable
doubt of the crime of rape of a demented person and sentenced him to an
imprisonment term of reclusion perpetua and ordered him to indemnify AAA in
the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and
P25,000.00 as exemplary damages.

On appeal, the following errors were assigned:

I.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE APPELLANT FOR

THE CRIME OF RAPE OF A DEMENTED PERSON DESPITE THE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II.

THE TRIAL COURT FAILED TO APPRECIATE APPELLANT’S AGE, BEING A

MINOR, ATTHE TIME OF THE COMMISSION OF THE CRIME.

III.

THE TRIAL COURT FAILED TO IMPOSE THE PROPER PENALTY.26

The Court of Appeals rendered the assailed Decision on 3 December 2009
affirming in toto the trial court’s Decision dated 18 October 2005.

Hence, this appeal.

Appellant contends that the prosecution failed to prove his guilt beyond
reasonable doubt as the testimonies of AAA, BBB, Analiza and Dr. Nochete were
replete with inconsistencies and improbabilities. Firstly, while the Information
stated that appellant raped AAA on or about the 9th day of December 2002 at
around 7:00 p.m., Analiza testified that it was in the afternoon of the same day
when she saw and heard appellant calling AAA to go to the kiln at the back of
their house, and while she saw appellant undress AAA, she did not actually see
the sexual intercourse because the appellant saw her watching them, so she ran
away. Secondly, BBB’s testimony that on 9 December 2002, AAA confided to her
that she was raped by appellant early that night was inconsistent with the
testimony of Analiza that it was in the afternoon of the same day when she saw
appellant and AAA going to the kiln, where the former undressed the latter.
Thirdly, Dr. Nochete’s testimony clearly stated that the hymenal lacerations on
AAA’s vagina could have possibly been sustained by her a month ago, which
does not support AAA’s claim of rape on 9 December 2002. Even granting that
appellant, indeed, raped AAA on 9 December 2002, it is highly implausible that
the hymenal lacerations on her vagina were already completely healed when she
was examined by Dr. Nochete on 10 December 2002, which was only after less
than 24-hours from the date the alleged rape was committed.

Appellant also questions the credibility of AAA as a witness given her condition
as a mental retardate. Appellant opines that AAA, could not perceive and is not
capable of making known her perception to others. As such, she can be easily
coached on what to say or do.

Appellant finally avers that granting arguendo that he is guilty of the crime
charged, he was only 17 years old at the time of its commission as evidenced by
his Certificate of Live Birth. This fact was even attested to by the Local Civil
Registrar of Bobon, Northern Samar. Given his minority at the time of the
commission of the crime charged, the court should have considered the same as
privileged mitigating circumstance in imposing the penalty against him.

This Court affirms appellant’s conviction.

At the outset, paragraph 1, Article 266-A of the Revised Penal Code, as amended
by Republic Act No. 8353,27 provides for two (2) circumstances when carnal
knowledge of a woman with mental disability is considered rape. Subparagraph
(b) thereof refers to rape of a person "deprived of reason" while subparagraph (d)
refers to rape of a "demented person."28 The term "deprived of reason" has been
construed to encompass those suffering from mental abnormality, deficiency or
retardation.29 The term "demented," on the other hand, means having dementia,
which Webster defines as mental deterioration; also madness, insanity.30
Dementia has also been defined in Black’s Law Dictionary as a "form of mental
disorder in which cognitive and intellectual functions of the mind are prominently
affected; x x x total recovery not possible since cerebral disease is involved."31
Thus, a mental retardate can be classified as a person "deprived of reason," not
one who is "demented" and carnal knowledge of a mental retardate is considered
rape under subparagraph (b), not subparagraph (d) of Article 266-A(1) of the
Revised Penal Code, as amended.32

In this case, both the trial court and the appellate court incorrectly used the word
demented to characterize AAA’s mental condition and mistakenly categorized the
rape committed by appellant under subparagraph (d), Article 266-A(1) of the
Revised Penal Code, as amended, instead of under subparagraph (b) thereof.
Nonetheless, the mistake would not exonerate appellant. Otherwise stated, his
conviction or criminal liability for rape stands though not under subparagraph (d)
of Article 266-A(1) of the Revised Penal Code, as amended, but under
subparagraph (b) thereof.

Neither can it be said that appellant’s right to be properly informed of the nature
and cause of the accusation against him was violated. This Court is not unaware
that the Information was worded, as follows: "AAA is suffering from mental
disorder or is demented or has mental disability." This fact, however, will not
render the Information defective and will not bar this Court from convicting
appellant under subparagraph (b) of Article 266-A(1) of the Revised Penal Code,
as amended.

In Olivarez v. Court of Appeals,33 this Court pronounced that:

x x x In People v. Rosare,34 the information did not allege that the victim was a
mental retardate which is an essential element of the crime of statutory rape.
This Court however sustained the trial court’s judgment of conviction holding that
the resolution of the investigating prosecutor which formed the basis of the
information, a copy of which is attached thereto, stated that the offended party is
suffering from mental retardation. It ruled that there was substantial compliance
with the mandate that an accused be informed of the nature of the charge
against him. Thus:

Appellant contends that he cannot be convicted of statutory rape because the

fact that the victim was a mental retardate was never alleged in the information
and, absent this element, the acts charged negate the commission of the offense
for which he was convicted by the lower court.

Pursuant to Section 8, Rule 112 of the Rules of Court, we have decided to motu
proprio take cognizance of the resolution issued by the investigating prosecutor
in I.S. No. 92-0197 dated June 2, 1992, which formed the basis of and a copy of
which was attached to the information for rape filed against herein appellant.
Therein, it is clearly stated that the offended party is suffering from mental
retardation. We hold, therefore, that this should be deemed a substantial
compliance with the constitutional mandate that an accused be informed of the
nature of the charge against him x x x (citation omitted).35 [Emphasis supplied].

In this case, both the Complaint36 and the Resolution37 of the Municipal Trial
Court of Northern Samar, which formed the basis of the Information and copies of
which were attached in the records, stated that AAA is suffering from mental
abnormalities – she looked like a retardate and her focus is not normal. Even, the
Resolution38 of the Acting Provincial Prosecutor concurred with the aforesaid
findings. From the aforesaid, it can be gleaned that AAA’s mental disorder or
mental disability is that of being a mentally retarded and not demented. Thus,
there was substantial compliance with the mandate to inform the accused of the
nature of the accusation.39 More so, as discussed hereunder, the prosecution
was able to prove that AAA is, indeed, a mental retardate. Even the appellant
affirmed the said mental condition of the victim.

To repeat, the term "deprived of reason" has been construed to encompass those
suffering from mental abnormality, deficiency or retardation.40 Hence, carnal
knowledge of a mental retardate is rape under subparagraph (b) not
subparagraph (d) of Article 266-A(1) of the Revised Penal Code, as amended.41

The gravamen of the crime of rape under Art. 266-A(1) is sexual intercourse with
a woman against her will or without her consent.42 Article 266-A(1) of the
Revised Penal Code, as amended, specifically states that:

ART. 266-A. Rape; When and How Committed. — Rape is committed.

1) By a man who have carnal knowledge of a woman under any of the following
circumstances:
a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present.[Emphasis
supplied].

From the foregoing, for the charge of rape to prosper, the prosecution must prove
that the offender had carnal knowledge of a woman through any of the four
enumerated circumstances. Without doubt, carnal knowledge of a woman who is
a mental retardate is rape under the aforesaid provisions of law. Proof of force or
intimidation is not necessary, as a mental retardate is not capable of giving
consent to a sexual act. What needs to be proven are the facts of sexual
congress between the accused and the victim, and the mental retardation of the
latter.43

In People v. Dalandas,44 citing People v. Dumanon,45 this Court held that

mental retardation can be proven by evidence other than medical/clinical
evidence, such as the testimony of witnesses and even the observation by the
trial court.46

In the present case, the prosecution was able to establish that AAA is, indeed, a
mental retardate through, (1) the testimony of her mother; (2) the trial court’s
observation; and (3) the mental examination and actual interview of AAA
conducted by Dr. Belicena, a Psychiatrist at the Northern Samar Provincial
Hospital, who found AAA to be suffering from moderate to severe mental
retardation, meaning, AAA is suffering from the "specific form of below average
intelligence which has a low reproduction functioning which result to impairment
functioning."47 It is also worthy to note that the defense did not dispute, even
admitted the fact that AAA is suffering from mental retardation. The findings of the
lower courts about AAA’s mental condition must be upheld.

The prosecution was also able to establish the fact of sexual congress between
appellant and AAA. Despite the latter’s mental condition, she narrated before the
court in the best way she could her ordeal in the hands of appellant. As stated by
the appellate court, AAA conveyed her ideas by words and demonstrations.48
AAA recounted how the appellant sexually abused her on 9 December 2002 by
inviting her to go to the kiln at the back of their house. Thereupon, appellant
suddenly undressed her by removing her shorts and panty. This fact was attested
to by Analiza, one of the prosecution witnesses, who actually witnessed appellant
undressing AAA by removing the latter’s shorts and panty. AAA further testified
that after undressing her, appellant made her lie down, placed himself on top of
her and made push and pull movements. Thereafter, appellant stopped, made
her sit down and sent her home.49 This testimony of AAA was correctly found by
the trial court and the appellate court as coherent and given in a detailed
manner.50

Emphasis must be given to the fact that the competence and credibility of
mentally deficient rape victims as witnesses have been upheld by this Court
where it is shown that they can communicate their ordeal capably and
consistently. Rather than undermine the gravity of the complainant’s accusations,
it even lends greater credence to her testimony, that, someone as feeble-minded
and guileless could speak so tenaciously and explicitly on the details of the rape
if she has not in fact suffered such crime at the hands of the accused. Moreover,
it has been jurisprudentially settled that when a woman says she has been
raped, she says in effect all that is necessary to show that she has been raped
and her testimony alone is sufficient if it satisfies the exacting standard of
credibility needed to convict the accused.51

Worth stressing also is the fact that during AAA’s testimony, she positively
identified the appellant as the person who raped her.52 Thus, the straightforward
narration of AAA of what transpired, accompanied by her categorical identification
of appellant as the malefactor, sealed the case for the prosecution.53

The allegation of inconsistencies in the testimonies of AAA, BBB, Analiza and Dr.
Nochete as regards the exact date and time the alleged rape incident happened,
as well as the absence of fresh hymenal lacerations on AAA’s vagina, pointed to
by appellant cannot work in his favor.

Evidently, these inconsistencies refer only to trivial and inconsequential matters

that do not alter the essential fact of the commission of rape.54 A witness is not
expected to remember with perfect recollection every minute detail of her
harrowing experience. A minor mistake as to the exact time of the commission of
the rape is immaterial and cannot discredit the testimony of a witness. This Court
has repeatedly held that the exact date of the commission of the rape is not an
essential element of the crime.55 Indeed, the precise time of the crime has no
substantial bearing on its commission.56 What is decisive in a rape charge is that
the commission of the rape by the accused against the complainant has been
sufficiently proven. Inconsistencies and discrepancies as to minor matters which
are irrelevant to the elements of the crime cannot be considered grounds for
acquittal.57

In the same way, the absence of fresh hymenal lacerations and spermatozoa on
AAA’s vagina do not negate the fact of rape. A freshly broken hymen, as well as
the presence or absence of spermatozoa, is not also an essential element of
rape.58 As clarified by Dr. Nochete, the absence of fresh hymenal laceration on
AAA’s vagina does not necessarily mean that she did not engage in sexual
intercourse on 9 December 2002. Possibly, AAA did not sustain any fresh
hymenal laceration as her vaginal canal had become loose. And, he did not find
any trace of spermatozoa because its presence depends on whether or not the
appellant ejaculated.

Indeed, a mental retardate is not, by reason of such handicap alone, be

disqualified from testifying in court.59 Mental retardation per se does not affect
credibility. A mentally retarded may be a credible witness. The acceptance of her
testimony depends on the quality of her perceptions and the manner she can
make them known to the court.60 If the testimony of a mental retardate is
coherent, the same is admissible in court.61

Neither can it be said that AAA was merely coached as a witness by her mother.
It is highly unthinkable that a mother would draw her daughter, a mental retardate
at that, into a rape story with all its attendant scandal and humiliation if the rape
did not really happen. No mother in her right mind would possibly wish to stamp
her child with the stigma that follows the despicable crime of rape.62 Moreover,
appellant failed to show any ill-motive on the part of AAA and her mother to
falsely testify against him.

In light of the straightforward and credible testimony of AAA, her positive

identification of appellant as her assailant and the lack of ill-motive on her part to
falsely testify against appellant, the latter’s defense of denial and alibi must
necessarily fail.

Denial is an inherently weak defense and has always been viewed upon with
disfavor by the courts due to the ease with which it can be concocted. Denial as
a defense crumbles in the light of positive identification of the accused, as in this
case. The defense of denial assumes significance only when the prosecution’s
evidence is such that it does not prove guilt beyond reasonable doubt. Verily,
mere denial, unsubstantiated by clear and convincing evidence, is negative self-
serving evidence which cannot be given greater evidentiary weight than the
testimony of the complaining witness who testified on affirmative matters.63

Like denial, alibi is not looked upon with favor by the trial court. It also cannot
prevail over witnesses’ positive identification of appellant as the perpetrator of the
crime. In any event, for the defense of alibi to prosper, it is not enough that the
accused can prove his presence at another place at the time of its commission, it
is likewise essential that he show physical impossibility for him to be at the locus
delicti,64 which the appellant in this case failed to do.

As aptly observed by the trial court:

The houses of the offended party and the appellant are only divided by a fence
and the place of the incident is only at the back of the house of the appellant. The
defense of alibi must fail. In addition to the positive identification made by AAA
and the place of the incident is adjacent to the houses of the victim and the
appellant, being neighbors, the fact that the appellant alleged that he was having
drinking spree at that time and that he was dead drunk at around 6:00 p.m. of
that date, there is no impossibility for the appellant to be physically present at the
scene of the incident, because of its proximity.

Corroborative testimony is not credible if tainted with bias particularly in cases

where the witnesses are closely associated to the appellant as to be interested in
the appellant’s acquittal. In this case, the appellant’s witnesses are his alleged
drinking buddy and his father. Considering that they are bound by friendship and
affiliation, it is conceivable that they would be inclined to make excuses for him
appellant from culpability.65

All told, appellant’s guilt has been proven by the prosecution beyond reasonable
doubt, thus, his conviction stands.

As to penalty. Under Article 266-B66 in relation to Article 266-A(1) of the Revised

Penal Code, as amended, simple rape is punishable by reclusion perpetua.
However, when rape is committed by an assailant who has knowledge of the
victim’s mental retardation, the penalty is increased to death. But this
circumstance must be alleged in the information being a qualifying circumstance
which increases the penalty to death and changes the nature of the offense from
simple to qualified rape.67 In the case at bench, while appellant categorically
admitted that he knew AAA to be suffering from mental abnormalities, the
prosecution failed to allege this fact in the information. As such, even if it was
proved, it cannot be appreciated as a qualifying circumstance. Thus, appellant’s
conviction is only for simple rape for which he should be meted the penalty of
reclusion perpetua.

Nonetheless, a reasonable ground exists in this case that calls for the
modification of the penaltyof reclusion perpetua imposed by both lower courts
upon the appellant.

This Court finds merit in appellant’s assertion that he was a minor during the
commission of the crime charged. During trial, upon order of the trial court, the
Local Civil Registrar of Bobon, Northern Samar, brought before it their office
records, particularly appellant’s Certificate of Live

Birth containing the fact of birth of the latter. Appellant’s Certificate of Live Birth
shows that he was born on 23 February 1985. Indeed, at the time of the
commission of the crime charged on 9 December 2002, appellant was only 17
years old, a minor. Thus, he is entitled to the privileged mitigating circumstance
of minority pursuant to Article 68(2) of the Revised Penal Code, as amended,68
which specifically states that:

ART. 68. – Penalty to be imposed upon a person under eighteen years of age. –
When the offender is a minor under eighteen years and his case is one coming
under the provisions of the paragraph next to the last of article 80 of this Code,
the following rules shall be observed:

xxxx

2. Upon a person over fifteen and under eighteen years of age the penalty next
lower than that prescribed by the law shall be imposed, but always in the proper
period.69 [Emphasis supplied].

Applying the privileged mitigating circumstance, the proper imposable penalty

upon appellant is reclusion temporal, being the penalty next lower to reclusion
perpetua - the penalty prescribed by law for simple rape. Being a divisible
penalty, the Indeterminate Sentence Law is applicable.70

Applying the Indeterminate Sentence Law, appellant can be sentenced to an

indeterminate penalty the minimum of which shall be within the range of prision
mayor (the penalty next lower in degree to reclusion temporal), that is 6 years
and 1 day to 12 years, and maximum of which shall be within the range of
reclusion temporal in its medium period (there being no other modifying
circumstances attendant to the crime), that is 14 years, 8 months and 1 day to 17
years and 4 months.71 With that, the indeterminate penalty of 10 years of prision
mayor, as minimum, to 17 years and 4 months of reclusion temporal, as
maximum, should be imposed upon the appellant. However, the case of
appellant does not, as it normally should, end at this point. On 20 May 2006,
Republic Act No. 9344, otherwise known as the "Juvenile Justice and Welfare Act
of 2006," took effect. Section 68 thereof specifically provides for its retroactive
application, thus:72

SEC. 68. Children Who Have Been Convicted and are Serving Sentence. –
Persons who have been convicted and are serving sentence at the time of the
effectivity of this Act, and who were below the age of eighteen (18) years at the
time of the commission of the offense for which they were convicted and are
serving sentence, shall likewise benefit from the retroactive application of this
Act. They shall be entitled to appropriate dispositions provided under this Act and
their sentences shall be adjusted accordingly. They shall be immediately
released if they are so qualified under this Act or other applicable law. [Emphasis
supplied].

Clearly, Republic Act No. 9344 is applicable in this case even though the crime
was committed four (4) years prior to its enactment and effectivity.
Parenthetically, with more reason should Republic Act No. 9344 apply to this
case as the 2005 conviction by the lower courts was still under review when the
law took effect in 2006.73

Section 38 of Republic Act No. 9344 warrants the suspension of sentence of a

child in conflict with the law notwithstanding that he/she has reached the age of
majority at the time the judgment of conviction is pronounced.74 It reads, thus:

SEC. 38. Automatic Suspension of Sentence. – Once the child who is under
eighteen (18) years of age at the time of the commission of the offense is found
guilty of the offense charged, the court shall determine and ascertain any civil
liability which may have resulted from the offense committed. However, instead
of pronouncing the judgment of conviction, the court shall place the child in
conflict with the law under suspended sentence, without need of application:
Provided, however, That suspension of sentence shall still be applied even if the
juvenile is already eighteen (18) of age or more at the time of the pronouncement
of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of

the child, the court shall impose the appropriate disposition measures as
provided in the Supreme Court Rule on Juveniles in Conflict with the Law.
[Emphasis supplied].
However, while Section 38 of Republic Act No. 9344 provides that suspension of
sentence can still be applied even if the child in conflict with the law is already
eighteen (18) years of age or more at the time of the pronouncement of his/her
guilt, Section 40 of the same law limits the said suspension of sentence until the
said child reaches the maximum age of 21, thus:75

SEC. 40. Return of the Child in Conflict with the Law to Court. – If the court finds
that the objective of the disposition measures imposed upon the child in conflict
with the law have not been fulfilled, or if the child in conflict with the law has
willfully failed to comply with the conditions of his/her disposition or rehabilitation
program, the child in conflict with the law shall be brought before the court for
execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age while
under suspended sentence, the court shall determine whether to discharge the
child in accordance with this Act, to order execution of sentence, or to extend the
suspended sentence for a certain specified period or until the child reaches the
maximum age of twenty-one (21) years. [Emphasis supplied].

At present, appellant is already 27 years of age, and the judgment of the trial
court was promulgated prior to the effectivity of Republic Act No. 9344.
Therefore, the application of Sections 38 and 40 of the said law is already moot
and academic.

Be that as it may, to give meaning to the legislative intent of Republic Act No.
9344, the promotion of the welfare of a child in conflict with the law should extend
even to one who has exceeded the age limit of 21 years, so long as he/she
committed the crime when he/she was still a child. The offender shall be entitled
to the right to restoration, rehabilitation and reintegration in accordance with
Republic Act No. 9344 in order that he/she is given the chance to live a normal
life and become a productive member of the community. The age of the child in
conflict with the law at the time of the promulgation of the judgment of conviction
is not material. What matters is that the offender committed the offense when
he/she was still of tender age.76 The appellant, therefore, shall be entitled to
appropriate disposition under Section 51 of Republic Act No. 9344, which
provides for the confinement of convicted children as follows:77

SEC. 51. Confinement of Convicted Children in Agricultural Camps and Other

Training Facilities. – A child in conflict with the law may, after conviction and upon
order of the court, be made to serve his/her sentence, in lieu of confinement in a
regular penal institution, in an agricultural camp and other training facilities that
may be established, maintained, supervised and controlled by the BUCOR, in
coordination with the DSWD.

To conform to this Court’s ruling in People v.Sarcia,78 the case shall be

remanded to the court of origin to effect appellant’s confinement in an agricultrual
camp or other training facility.79

As to damages. The civil liability resulting from the commission of the offense is
not affected by the appropriate disposition measures and shall be enforced in
accordance with law.80 This Court affirms both the civil indemnity of P50,000.00
and moral damages of P50,000.00 awarded by the lower courts in favor of AAA.
Civil indemnity, which is actually in the nature of actual or compensatory
damages, is mandatory upon the finding of the fact of rape. Case law also
requires automatic award of moral damages to a rape victim without need of
proof because from the nature of the crime, it can be assumed that she has
suffered moral injuries entitling her to such award. Such award is separate and
distinct from civil indemnity.81

In consonance with prevailing jurisprudence on simple rape wherein exemplary

damages are awarded to set a public example and to protect hapless individuals
from sexual molestation, this Court likewise affirms the lower courts award of
exemplary damages but increased the same from P25,000.00 to P30,000.00 to
conform to recent jurisprudence.82

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-

G.R. CR-HC No. 00457 dated 3 December 2009 is hereby MODIFIED as follows:
(I) appellant is found guilty of rape under subparagraph (b) of Article 266-A( I) of
the Revised Penal Code, as amended, and not under subparagraph (d) thereof;
(2) in view of the privileged mitigating circumstance appreciated in favor of
appellant the penalty of reclusion perpetua is reduced to reclusion temporal and
being a divisible penalty, the Indeterminate Sentence Law applies and the
indeterminate penalty of I 0 years of prision mayor, as minimum, to 17 years and
4 months of reclusion temporal, as maximum, is imposed upon the appellant; and
(3) the amount of exemplary damages awarded by the lower courts is increased
from P25,000.00 to P30,000.00. The award of civil indemnity and moral damages
both in the amount of P50,000.00 are maintained. This case, however, shall be
REMANDED to the court a quo for appropriate disposition in accordance with
Section 51 of Republic Act No. 9344.

SO ORDERED.
G.R NO 177751 --mitigating circumstance of minority, existence of
conspiracy and treachery

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
FLORENCIO AGACER,* EDDIE AGACER, ELYNOR AGACER, FRANKLIN
AGACER and ERIC*** AGACER, Accused-Appellants.

RESOLUTION

DEL CASTILLO, J.:

For resolution is appellants' Motion for Reconsideration1 of our December 14,

2011 Decision2 affirming their conviction for the murder of Cesario Agacer, the
dispositive portion of which reads as follows:

WHEREFORE, the Court AFFIRMS the November 17, 2006 Decision of the
Court of Appeals in CA-G.R. CR-H.C. No. 01543 which affirmed the August 7,
2001 Decision of the Regional Trial Court, Branch 8, Aparri, Cagayan, finding
appellants Florencio, Franklin, Elynor, Eddie and Eric, all surnamed Agacer. guilty
beyond reasonable doubt of the crime of murder, with the following modifications:

(1) actual damages is DELETED;

(2) the appellants are ORDERED to pay the heirs of Cesario Agacer ₱25,000.0
as temperate damages; and

(3) the appellants are ORDERED to pay the heirs of Cesario Agacer h interest at
the legal rate of six percent (6%) per annum on all the amounts of damages
awarded, commencing from the date of finality of this Decision until fully paid.

Costs against appellants.

SO ORDERED.3

Appellants assert that their mere presence at the scene of the crime is not
evidence of conspiracy;4 that there was no treachery since a heated argument
preceded the killing of the victim;5 and that even assuming that their guilt was
duly established, the privileged mitigating circumstance of minority should have
been appreciated in favor of appellant Franklin Agacer (Franklin) who was only
16 years and 106 days old at the time of the incident, having been born on
December 21, 1981.6

In our February 13, 2012 Resolution,7 we required the Office of the Solicitor
General (OSG) to comment on the Motion for Reconsideration particularly on the
issue of Franklin’s minority.

Meanwhile, in a letter8 dated June 8, 2012, the Officer-in-Charge of the New

Bilibid Prison, informed us that appellant Florencio Agacer (Florencio) died on
February 17, 2007, as evidenced by the attached Certificate of Death indicating
cardio pulmonary arrest secondary to status asthmaticus as the cause of death.9

The OSG, in its Comment,10 asserts that there exists no cogent reason to
disturb our findings and conclusions as to the guilt of the appellants since the
facts and evidence clearly established conspiracy and treachery. However, it did
not oppose and even agreed with appellants’ argument that minority should have
been appreciated as a privileged mitigating circumstance in favor of Franklin, the
same being duly supported by a copy of Franklin’s Certificate of Live Birth
secured from the National Statistics Office (NSO) Document Management
Division.11

Issues

Hence, the following issues for our resolution:

1. Was the evidence sufficient to establish the existence of conspiracy and

treachery in the commission of the crime charged?

2. Should the mitigating circumstance of minority be appreciated in favor of

appellant Franklin?

3. Does the death of appellant Florencio extinguish his criminal and civil
liabilities?

Our Ruling

There is partial merit in appellants’ Motion for Reconsideration.

Reiterated Arguments in a Motion for Reconsideration Do Not Need a New

Judicial Determination.
Appellants’ contention that the prosecution’s evidence is insufficient to prove
conspiracy and treachery is a mere rehash of their argument set forth in their
brief, "which we already considered, weighed and resolved before we rendered
the Decision sought to be reconsidered."12 It is not a new issue that needs
further judicial determination.13 There is therefore no necessity to discuss and
rule again on this ground since "this would be a useless formality of ritual
invariably involving merely a reiteration of the reasons already set forth in the
judgment or final order for rejecting the arguments advanced by the movant."14

As a Minor, Franklin is Entitled to the Privileged Mitigating Circumstance of

Minority.

Nevertheless, we agree with appellants that Franklin is entitled to the privileged

mitigating circumstance of minority. Franklin’s Certificate of Live Birth shows that
he was born on December 20, 1981, hence, was merely 16 years old at the time
of the commission of the crime on April 2, 1998. He is therefore entitled to the
privileged mitigating circumstance of minority embodied in Article 68(2) of the
Revised Penal Code. It provides that when the offender is a minor over 15 and
under 18 years, the penalty next lower than that prescribed by law shall be
imposed on the accused but always in the proper period. The rationale of the law
in extending such leniency and compassion is that because of his age, the
accused is presumed to have acted with less discernment.15 This is regardless
of the fact that his minority was not proved during the trial and that his birth
certificate was belatedly presented for our consideration, since to rule
accordingly will not adversely affect the rights of the state, the victim and his
heirs.

Penalty to be Imposed Upon Franklin.

Pursuant to the above discussion, the penalty imposed upon Franklin must be
accordingly modified. The penalty for murder is reclusion perpetua to death. A
degree lower is reclusion temporal.16 There being no aggravating and ordinary
mitigating circumstance, the penalty to be imposed on Franklin should be
reclusion temporal in its medium period, as maximum, which ranges from
fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years
and four (4) months.17 Applying the Indeterminate Sentence Law, the penalty
next lower in degree is prision mayor, the medium period of which ranges from
eight (8) years and one (1) day to ten (10) years. Due to the seriousness of the
crime and the manner it was committed, the penalty must be imposed at its most
severe range.
The Death of Florencio Prior to Our Final Judgment Extinguishes His Criminal
Liability and Civil Liability Ex Delicto.

On the effect of the death of appellant Florencio on his criminal liability, Article
89(1) of the Revised Penal Code provides that:

Art. 89. How criminal liability is totally extinguished. – Criminal liability is totally
extinguished.

1. By the death of the convict, as to the personal penalties; and as to pecuniary

penalties, liability therefor is extinguished only when the death of the offender
occurs before final judgment;

xxxx

It is also settled that "upon the death of the accused pending appeal of his
conviction, the criminal action is extinguished inasmuch as there is no longer a
defendant to stand as the accused; the civil action instituted therein for recovery
of civil liability ex delicto is ipso facto extinguished, grounded as it is on the
criminal."18

While Florencio died way back on February 7, 2007, the said information was not
timely relayed to the Court, such that we were unaware of the same when we
rendered our December 14, 2011 Decision. It was only later that we were
informed of Florencio’s death through the June 8, 2012 letter of the Officer-in-
Charge of the New Bilibid Prison. Due to this development, it therefore becomes
necessary for us to declare Florencio 's criminal liability as well as his civil liability
ex delicto to have been extinguished by his death prior to final judgment. The
judgment or conviction is thus set aside insofar as Florencio is concerned.

WHEREFORE, appellants' Motion for Reconsideration is PARTIALLY

GRANTED.1âwphi1 Our Decision dated December 14, 2011 is MODIFIED as
follows: (a) appellant Franklin Agacer is sentenced to suffer the penalty often (10)
years of prision mayor in its medium period, as minimum, to seventeen (17)
years and four ( 4) months of reclusion temporal in its medium period, as
maximum, and (b) the criminal liability and civil liability ex delicto of appellant
Florencio Agacer are declared EXTINGUISHED by his death prior to final
judgment. The judgment or conviction against him is therefore SET ASIDE.

SO ORDERED.
G.R NO 189405--JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE

SHERWIN DELA CRUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and CARLOS ALBERTO L. GONZALES, in
behalf of his deceased brother, JEFFREY WERNHER L. GONZALES,
Respondents.

DECISION

PERALTA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court,
seeking to annul and set aside the May 7, 2009 Decision1 of the Court of
Appeals, in CA-G.R. CV No. 89257, finding petitioner Sherwin Dela Cruz guilty
beyond reasonable doubt of the crime of Homicide, and its August 19, 2009
Resolution2 denying his motion for reconsideration.

Petitioner was charged with the crime of Homicide in an Information3 dated

March 2, 2005, which alleged:

That on or about the 1st day of January 2005, in the City of Makati, Philippines
and within the jurisdiction of this Honorable Court, the abovenamed accused,
with intent to kill and with the use of an unlicensed firearm, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot one JEFFREY
WERNHER GONZALES Y LIM on the head, thereby inflicting upon the latter
serious and moral gunshot wound which directly caused his death.

CONTRARY TO LAW.4

According to the prosecution, on January 1, 2005, at around 2:30 in the

afternoon, petitioner went to the office of Sykes Asia Inc. located at the 25th Floor
of Robinson’s Summit Center,Ayala Avenue, Makati City. When petitioner was
already inside the building, he went to the work station of the deceased victim,
Jeffrey Wernher L. Gonzales (Jeffrey), who, by the configuration of the eye
witness Antonette Managbanag’s sketch, was seated fronting his computer
terminal, with his back towards the aisle. As petitioner approached Jeffrey from
the back, petitioner was already holding a gun pointed at the back of Jeffrey’s
head. At the last second, Jeffrey managed to deflect the hand of petitioner
holding the gun, and a short struggle for the possession of the gun ensued
thereafter. Petitioner won the struggle and remained in possession of the said
gun. Petitioner then pointed the gun at Jeffrey’s face, pulled the trigger four (4)
times, the fourth shot finally discharging the bullet that hit Jeffrey in the forehead,
eventually killing him. Finally, after shooting Jeffrey, petitioner fled the office.

The defense recounted a different version of the facts.

Petitioner claimed that on January1, 2005, at around 2:30 in the afternoon, more
or less, petitioner, together with his children, went to Sykes Asia, the workplace of
his wife, Darlene Dela Cruz (Darlene), located at the 25th Floor of Robinson’s
Summit Building in Makati City, to fetch the latter so that their family could spend
time and celebrate together the New Year’s Day. Before entering the Robinson’s
Summit Building, petitioner underwent the regular security check-up/procedures.
He was frisked by the guards-on-duty manning the main entrance of said building
and no firearm was found in his possession. He registered his name at the
security logbook and surrendered a valid I.D.

Upon reaching the 25th Floor of the same building, a security guard manning the
entrance once again frisked petitioner and, likewise, found no gun in his
possession; hence, he was allowed to enter the premises of Sykes Asia. The
security guard also pointed to him the direction towards his wife’s table.

However, as Darlene was then not on her table, petitioner approached a certain
man and asked the latter as to the possible whereabouts of Darlene. The person
whom petitioner had talked towas the deceased-victim, Jeffrey. After casually
introducing himself as the husband of Darlene, Jeffrey curtly told him, "Bakit mo
hinahanap si Darlene?"to which he answered, "Nagpapasundo kasi sa akin."The
response given by Jeffrey shocked and appalled petitioner: "Ayaw na nga ng
asawa mo sayo sinusundo mo pa!"

Shocked by the words and reaction of Jeffrey, petitioner tried to inquire from
Jeffrey who he was. But Jeffrey suddenly cursed petitioner. Then, Jeffrey
suddenly picked up something in his chair which happened to be a gun and
pointed the same at petitioner’s face followed by a clicking sound. The gun,
however, did not fire.

Seeing imminent danger to his life,petitioner grappled with Jeffrey for the
possession of the gun.While grappling, the gunclicked for two (2) to three (3)
more times. Again, the gun did not fire.

Petitioner was able to wrest away the gun from Jeffrey and tried to run away to
avoid any further confrontation with the latter.However, Jeffrey immediately
blocked petitioner’s path and shouted, "Guard! Guard!" Immediately then, Jeffrey
took hold ofa big fire extinguisher, aimed and was about to smash the same on
petitioner’s head.

Acting instinctively, petitioner parried the attack while still holding the gun. While
in the act of parrying, the gun accidentally fired due to the reasonable force and
contact that his parrying hand had made with the fire extinguisher and the single
bullet discharged hit the forehead of Jeffrey, which caused the latter to fall on the
floor and die.

Petitioner left the gun and went out ofthe premises of Sykes Asia and proceeded
towards the elevator. On his way to the elevator, he heard Darlene shout,
"Sherwin anong nangyari?", but he was not able to answer.

After said incident, Darlene abandoned petitioner and brought with her their two
(2) young children. Petitioner later learned that Darlene and Jeffrey had an illicit
relationship when he received a copy of the blog of Darlene, dated January 30,
2005, sent by his friend.

During his arraignment, on August 22, 2005, petitioner, with the assistance of
counsel, pleaded "Not Guilty" to the charge. Thereafter, pretrial conference was
conducted on even date and trial on the merits ensued thereafter.

During the trial of the case, the prosecution presented the oral testimonies of
Marie Antonette Managbanag (Managbanag), Maria Angelina Pelaez (Pelaez)
and Carlos Alberto Lim Gonzales (Gonzales), respectively. The prosecution
likewise formally offered several pieces of documentary evidence to support its
claim.

For its part, the defense presented aswitnesses, petitioner himself; his brother,
Simeon Sander Dela Cruz III (Cruz), Greg Lasmarias Elbanvuena (Elbanvuena)
and Managbanag, who was recalled to the witness stand as witness for the
defense.

On February 26, 2007, the Regional Trial Court (RTC)of Makati City, Branch 147,
rendered a Decision5 finding petitioner guilty beyond reasonable doubt of the
crime of Homicide, as defined and penalized under Article 249 of the Revised
Penal Code (RPC), the fallo thereof reads:

WHEREFORE, Judgment is rendered finding herein accused Sherwin Dela Cruz

y Gloria Guilty beyond reasonable doubt of the crime of Homicide as defined and
penalized under Art. 249 of the Revised Penal Code, and sentencing him to
suffer the indeterminate penalty of Eight (8) years and One (1) day of prision
mayor medium as Minimum to Fourteen (14) years eight (8) months and one (1)
day of reclusion temporal medium as Maximum; to indemnify the Heirs of Jeffrey
Wernher Gonzales y Lim in the amount of ₱50,000.00 plus moral damages in the
amount of ₱1 Million, and to pay the costs.

SO ORDERED.6

On March 28, 2007, petitioner filed a Notice of Appeal, while private respondent,
through the private prosecutor, filed a Notice of Appeal on April 11, 2007 insofar
as the sentence rendered against petitioner is concerned and the civil damages
awarded.

After the denial of their motion for reconsideration, petitioner elevated the case to
the Court of Appeals (CA). However, the latter denied their appeal and affirmed
the RTC decision with modification on the civil liability of petitioner. The decretal
portion of the Decision7 reads: WHEREFORE, we hereby AFFIRM the Decision
of the Regional Trial Court of Makati, Branch 147 dated 26 February 2007 finding
accused-appellant Sherwin Dela Cruz y Gloria GUILTY beyond reasonable doubt
of the crime ofHomicide with the following MODIFICATIONS:

(1) to pay the heirs of the victim the amount of ₱50,000.00 as civil indemnity;

(2) the amount of ₱50,000.00 as moral damages;

(3) the amount of ₱25,000.00 as temperate damages;

(4) the amount of ₱3,022,641.71 as damages for loss of earning capacity.

(5) to pay the costs of the litigation.

SO ORDERED.8

Petitioner's motion for reconsideration was denied. Hence, the present petition.

Raised are the following issues for resolution:

1. WHETHER ALL THE REQUISITES OF THE JUSTIFYING CIRCUMSTANCE

OF SELF-DEFENSE, AS PROVIDED FOR BY LAW AND SETTLED
JURISPRUDENCE, ARE PRESENT IN THIS CASE.
2. WHETHER THE FIRING OF THE GUN WHEREIN ONLY A SINGLE BULLET
WAS DISCHARGED THEREFROM WAS MERELY ACCIDENTAL WHICH
OCCURRED DURING THE TIME THAT THE PETITIONER-APPELLANT WAS
STILL IN THE ACT OF DEFENDING HIMSELF FROM THE CONTINUOUS
UNLAWFUL AGGRESSION OF THE DECEASED VICTIM.

3. WHETHER THE PROSECUTION WAS ABLE TO PROVE ALL THE

ESSENTIAL ELEMENTS CONSTITUTING THE CRIME OF HOMICIDE.

4. WHETHER THE PRIVILEGED MITIGATING CIRCUMSTANCE OF SELF-

DEFENSE IS APPLICABLE IN THIS CASE.

5. WHETHER PETITIONER-APPELLANT MAY BE HELD CIVILLY LIABLE FOR

THE DEATH OF THE VICTIM ARISING FROM THE ACCIDENT THAT
TRANSPIRED.9

There is no question that petitioner authored the death of the deceased-victim,

Jeffrey. What is leftfor determination by this Court is whether the elements of self-
defenseexist to exculpate petitioner from the criminal liability for Homicide.

The essential requisites of self-defense are the following: (1) unlawful aggression
on the part of the victim; (2) reasonable necessity of the means employed to
prevent or repel such aggression; and (3) lackof sufficient provocation on the part
of the person resorting to self-defense.10 In other words, there must have been
an unlawful and unprovoked attack that endangered the life of the accused, who
was then forced to inflict severe wounds upon the assailant by employing
reasonable means to resist the attack.11

Considering that self-defense totally exonerates the accused from any criminal
liability, it is well settled thatwhen he invokes the same, it becomes incumbent
upon him to prove by clear and convincing evidence that he indeed acted in
defense of himself.12 The burden of proving that the killing was justified and that
he incurred no criminal liability therefor shifts upon him.13 As such, he must rely
on the strength of his own evidence and not on the weakness of the prosecution
for, even if the prosecution evidence is weak, it cannot be disbelieved after the
accused himself has admitted the killing.14

Measured against this criteria, wefind that petitioner's defense is sorely wanting.
Hence, his petition must be denied.
First. The evidence on record does not support petitioner's contention that
unlawful aggression was employed by the deceased-victim, Jeffrey, against him.

Unlawful aggression is the most essential element of self-defense. It

presupposes actual, sudden, unexpected or imminent danger — not merely
threatening and intimidating action.15 There is aggression, only when the one
attacked faces real and immediate threat to his life.16 The peril sought to be
avoided must be imminent and actual, not merely speculative.17 In the case at
bar, other than petitioner’s testimony, the defense did not adduce evidence to
show that Jeffrey condescendingly responded to petitioner’s questions or initiated
the confrontation before the shooting incident; that Jeffrey pulled a gun from his
chair and tried to shoot petitioner but failed — an assault which may have caused
petitioner to fear for his life.

Even assuming arguendothat the gun originated from Jeffrey and an altercation
transpired, and therefore, danger may have in fact existed, the imminence of that
danger had already ceased the moment petitioner disarmed Jeffrey by wresting
the gun from the latter. After petitioner had successfully seized it, there was no
longer any unlawful aggression to speak of that would have necessitated the
need to kill Jeffrey. As aptly observed by the RTC, petitioner had every
opportunity to run away from the scene and seek help but refused to do so, thus:

In this case, accused and the victim grappled for possession of the gun.1avvphi1
Accused admitted that he wrested the gun from the victim. From that point in time
until the victim shouted "guard, guard", then took the fire extinguisher, there was
no unlawful aggression coming from the victim. Accused had the opportunity to
run away. Therefore, even assuming that the aggression with use of the gun
initially came from the victim, the fact remains that it ceased when the gun was
wrested away by the accused from the victim. It is settled that when unlawful
aggression ceases, the defender no longer has any right to kill or wound the
former aggressor, otherwise, retaliation and not self-defense is committed (Peo
Vs. Tagana, 424 SCRA 620). A person making a defense has no more right to
attack an aggressor when the unlawful aggression has ceased (PeoVs. Pateo,
430 SCRA 609).

Accused alleged that the victimwas about to smash the fire extinguisher on his
(accused’s) headbut he parried it with his hand holding the gun. This is doubtful
as nothing in the records is or would be corroborative of it.In contrast, the two (2)
Prosecution witnesses whose credibility was not impeached, both gave the
impression that the victim got the fire extinguisher to shieldhimself from the
accused who was then already in possession of the gun.18
Thus, when an unlawful aggression that has begun no longer exists, the one who
resorts to self-defense has no right to kill or even wound the former aggressor.19
To be sure, when the present victim no longer persisted in his purpose or action
to the extent that the object of his attack was no longer in peril, there was no
more unlawful aggression that would warrant legal self-defense on the part of the
offender.20 Undoubtedly, petitioner went beyond the call of self-preservation
when he proceeded to inflict excessive, atrocious and fatal injuries on Jeffrey,
even when the allegedly unlawful aggression had already ceased.

More, a review of the testimony of the prosecution witness, Pelaez, will show that
if there was unlawful aggression in the instant case, the same rather emanated
from petitioner, thus: DIRECT EXAMINATION

Atty. Mariano:

Q: Can you relate to the Court, Ms. Witness, how did this incident happen?

A: We were still at work, we were expecting calls but there were no calls at the
moment and I was standing at my work station and then Sherwin approached
Jeff and he pointed a gun at the back of the head of Jeff.

Q: And then what happened?

A: And then Jeff parried the gun and they started struggling for the possession of
the gun.

Q: How far were you from this struggle when you witnessed it?

A: Probably 10 to 12 feet.

Q: Going back to your story, Ms. Witness, you mentioned that after Jeffrey
warded off the gun, they started to struggle, what happened after that, if any?

A: After they struggled, the gun clicked three times and then after that Jeff tried to
get hold of the fire extinguisher and the fourth shot went off and then Jeffrey fell
down.

Q: And who was holding the gun?

A: Sherwin was holding the gun. (TSN, Oct. 17, 2005, pp. 12-14) CROSS-
EXAMINATION: Atty. Agoot:

Q: So you did not see when Sherwin approached Jeffrey because he came from
the other side? Atty. Mariano:

Objection, your Honor, witness already answered that.

Atty. Agoot:

I am on cross examination, your Honor.

COURT

You didn’t not see when he approached Jeffrey? A: No, as I said, I saw him point
the gun at the back of Jeff and he did not come from my side so that means…

COURT

No, the question is, You did not actually see Sherwin approached Jeffrey?

A: I saw him already at the back of Jeffrey.

Atty. Agoot

He was already at the back of Jeffrey when you saw him?

A: Yes, Sir.

(TSN, Oct. 17, 2005, pp. 26-27)21

Clearly, petitioner's allegation that when he approached Jeffrey, the latter pulled a
gun from his chair and tried to shoot him, is not corroborated by separate
competent evidence. Pitted against the testimony of prosecution witnesses,
Managbanag and Pelaez, it pales incomparison and loses probative value. We
have, on more thanone occasion, ruled that the plea of self-defense cannot be
justifiably entertained where it is not only uncorroborated by any separate
competent evidence but also extremely doubtful in itself.22

In addition, other than petitioner’s testimony, there is dearth of evidence showing

that the alleged unlawful aggression on the part of Jeffrey continued when he
blocked the path of petitioner while the latter tried to run away to avoid further
confrontation with Jeffrey. We also agree with the findings of the RTC that there
was no proof evincing that Jeffrey aimed and intended to smash the big fire
extinguisher on petitioner’s head. Alternatively, the prosecution witnesses
maintained an impression that Jeffrey used the same to shield himself from
petitioner who was then in possession of the gun, a deadly weapon. An excerpt
of the testimony of Managbanag bares just that, to wit:

Atty. Agoot

Q: And then after pulling the fire extinguisher from the wall Jeffrey again faced
the person who was holding the gun already?

Witness:

A: He was holding the fire extinguisher like this.

COURT

For the record.

Atty. Mariano:

Witness demonstrating how the victim Jeffrey Gonzales was holding the fire
extinguisher upright with his right hand above the fire extinguisher and his left
hand below the fire extinguisher.

Witness:

The left hand would support the weight basically.

Atty. Agoot

Q: And then he used that fire extinguisher to protect himself from the slapping of
that person who was in possession of the gun?

Witness

A: Yes, sir.

Atty. Agoot
Q: And then after that there was again a grappling?

Witness

A: No more grappling for possession. Because Jeffrey was still holding the fire
extinguisher at thattime. And then he fell holding on to the fire extinguisher.

Atty. Agoot

Q: You said here which I quote "binaril siya ng lalaki ng sunod-sunod pero hindi
pumutok" Do you affirmand confirm this statement?

Witness

A: Yes, sir. They were pushing each other. The other person was trying to point
the gun at Jeffrey and Jeffrey was trying to cover himself with the fire
extinguisher so nagkakatulakan sila at the same time.

Atty. Agoot

Q: You said that the gun clicked, how many times did the gun click without firing?

Witness

A: Three (3) times, sir.

Atty. Agoot

Q: And what did the late Jeffrey do when the gun clicked but did not fire?

Witness

A: They were still pushing each other at that time.

Atty. Agoot

Q: Using the fire extinguisher, heused that to push against the person…

Witness

A: Basically trying to cover himself and trying to push away the person who was
pointing the gun at him.

Atty. Agoot

Q: And why do you know that Jeffrey was trying hard to push the fire
extinguisher?

Witness

A: Because I was seated roughly about 5 to 6 feet away from them. So I clearly
saw what was going on at that time.

(Direct Examination of Marie Antonette Managbanag for the Defense, TSN dated
04 September 2006, pp. 12-17, emphasis supplied)23

Petitioner’s contention that Jeffrey’s unlawful aggression was continuous and

imminent is, therefore, devoid of merit.

Given that the criteria of unlawful aggression is indubitably absent in the instant
case, the severe wounds inflicted by petitioner upon Jeffrey was unwarranted
and, therefore, cannot be considered a justifying circumstance under pertinent
laws and jurisprudence.

Second. Even assuming that the unlawful aggression emanated from the
deceased victim, Jeffrey, the means employed by petitioner was not reasonably
commensurate to the nature and extent of the alleged attack, which he sought to
avert. As held by the Court in People v. Obordo:24

Even assuming arguendo that there was unlawful aggression on the part of the
victim, accused-appellant likewise failed to prove that the means he employed to
repel Homer's punch was reasonable. The means employed by the person
invoking self-defense contemplates a rational equivalence between the means of
attack and the defense. Accused appellant claimed that the victim punched him
and was trying to get something from his waist, so he (accused-appellant)
stabbed the victim with his hunting knife. His act of immediately stabbing Homer
and inflicting a wound on a vital part ofthe victim's body was unreasonable and
unnecessary considering that, as alleged by accused-appellant himself, the
victim used his bare fist in throwing a punch at him.25

Indeed, the means employed by a person resorting to self-defense must be

rationally necessary to prevent or repel an unlawful aggression. The opposite
was, however, employed by petitioner, as correctly pointed out by the RTC, thus:

The victim was holding the fire extinguisher while the second was holding the
gun. The gun and the discharge thereof was unnecessary and disproportionate
to repel the alleged aggression with the use of fire extinguisher. The rule is that
the means employed by the person invoking self-defense contemplates a rational
equivalence between the means of attack and the defense (Peo vs. Obordo, 382
SCRA 98).

It was the accused who was in a vantage position as he was armed with a gun,
as against the victim who was armed, so to speak, with a fire extinguisher, which
is not a deadly weapon. Under the circumstances, accused’s alleged fear was
unfounded. The Supreme Court has ruled that neither an imagined impending
attack nor an impending or threatening attitude is sufficient to constitute unlawful
aggression (Catalina Security Agency Vs. Gonzales-Decano, 429 SCRA 628). It
is a settled rule that to constitute aggression, the person attacked must be
confronted by a real threat on his lifeand limb; and the peril sought to be avoided
is imminent and actual, not merely imaginary (Senoja v. Peo., 440 SCRA 695).26

If petitioner had honestly believed that Jeffrey was trying to kill him, he should
have just run, despite any obstruction, considering that he was already in
possession of the gun. He could have also immediately sought help from the
people around him, specifically the guard stationed at the floor where the
shooting incident happened. In fact, he could have reported the incident to the
authorities as soon as he had opportunity to do so, if it was indeed an accident or
a cry of self-preservation. Yet, petitioner never did any of that.

We find it highly specious for petitioner to go through the process of tussling and
hassling with Jeffrey, and inthe end, shooting the latter on the forehead, not only
once, but four times, the last shot finally killing him, if he had no intention to hurt
Jeffrey. Thus:

Moreover, the Prosecution’s eyewitnesses were consistent in declaring that while

there was prior struggle for the possession of the gun, it was nevertheless
accused who was holding the gun at the time of the actual firing thereof (TSN, p.
30, October 10, 2005; TSN, p. 14, October 17, 2005). Witness Managbanag
even alleged that while the victim (Jeffrey), who was in possession of the fire
extinguisher, and the accused were pushing each other, accused pointed the gun
at the victim. She heard three (3) clicks and on the 4th , the gun fired (TSN, p.
12, October 10, 2005). Under the circumstances, it cannot be safely said that the
gun was or could have been fired accidentally. The discharge of the gun which
led to the victim’s death was no longer made in the course of the grapple and/or
struggle for the possession of the gun.27

The observation of the RTC dispels any doubt that the gun may have been shot
accidentally to the detriment of Jeffrey. The fire was neither a disaster nor a
misfortune of sorts. While petitioner may nothave intended to kill Jeffrey at the
onset, at the time he clicked the trigger thrice consecutively, his intent to hurt (or
even kill) Jeffrey was too plain to be disregarded. We have held in the pastthat
the nature and number of wounds are constantly and unremittingly considered
important indicia which disprove a plea of self-defense.28 Thus, petitioner’s
contention that an accident simultaneously occurred while hewas in the act of
self-defense is simply absurd and preposterous at best. There could nothave
been an accident because the victim herein suffered a gunshot wound on his
head, a vital part of the body and, thus, demonstrates a criminal mind resolved to
end the life of the victim.

Besides, petitioner’s failure to inform the police of the unlawful aggression on the
part of Jeffrey and to surrender the gun that he used to kill the victim militates
against his claim of self-defense.29

In view of the foregoing, we find it illogical to discuss further the third element of
self-defense since it is recognized that unlawful aggression is a conditio sine qua
nonfor upholding the justifying circumstance of self-defense.30 If there is nothing
to prevent or repel, the other two requisites of self-defense will have no basis.31
Hence, there is no basis to entertain petitioner’s argument that a privileged
mitigating circumstance of selfdefense is applicable in this case, because unless
the victim has committed unlawful aggression against the other, there can be no
self-defense, complete or incomplete, on the part of the latter.32

Anent petitioner’s argument thatthe RTC erred when it failed to consider as

suppression of evidence the prosecution’s alleged deliberate omission to present
the testimonies of the security guards-on-duty at the time of the shooting
incident, the same fails to persuade. We concur with the decision of the CA on
this point, to wit:

Having admitted the killing of the victim, the burden of evidence that he acted in
self-defense, shifted to accused-appellant Dela Cruz. He must rely on the
strength of his own evidence and not on the weakness of the prosecution’s
evidence, for, even if the latter were weak, it could not be disbelieved after his
open admission of responsibility for the killing.
The security guards on duty at the time of the subject incident were at the
disposal of both the prosecution and the defense. The defense did not proffer
proof that the prosecution prevented the security guards from testifying. There is
therefore no basis for it to conclude that the prosecution is guilty of suppression
of evidence.

The defense could have easily presented the security guards if it is of the opinion
that their [the security guards] testimonies were vital and material to the case of
the defense. It could have compelled the security guards on duty to appear
before the court. xxx.33

It is worthy to note that the question of whether petitioner acted in self-defense is

essentially a question of fact.34 It is the peculiar province of the trial court to
determine the credibility of witnesses and related questions of fact because of its
superior advantage in observing the conduct and demeanor of witnesses while
testifying.35 This being so and in the absence of a showing that the CA and the
RTC failed to appreciate facts or circumstances of such weight and substance
that would have merited petitioner's acquittal, this Court finds no compelling
reason to disturb the ruling of the CA that petitioner did not act in self-defense.36

In this regard, we do not subscribe to petitioner’s contention that since the

incident transpired in Jeffrey’s office, and the witnesses presented by the
prosecution are known officemates of Jeffrey, the witnesses are expected to
testify in favor of Jeffrey and against petitioner. Ascorrectly pointed out by
respondent, there appears no motive on the part of the prosecution witnesses to
falsely testify against petitioner.37 The fact that they are officemates of Jeffrey
does not justify a conclusion that Managbanag and Pelaez would concoct or
fabricate stories in favorof Jeffrey for the mere purpose of implicating petitioner
with such a serious crime, especially since they are testifying under oath.

All told, we find no basis to doubt ordispute, much less overturn, the findings of
the RTC and the CA that the elements of homicide are present in the instant case
as amply shown by the testimonies of the prosecution eyewitnesses, and they
constitute sufficient proof of the guilt of petitioner beyond cavil or doubt.

Nevertheless, with regard to the appreciation of the aggravating circumstance of

use of an unlicensed firearm, we deviate from the findings of the CA. A perusal of
the Information will show that the use of unlicensed firearm was expressly
alleged in the killing of Jeffrey. This allegation was further proved during trial by
the presentation of the Certification from the PNP Firearms and Explosives
Division, dated November 11, 2005, certifying that petitioner is not a
licensed/registered firearm holder of any kind and calibre, per verification from
the records of the said Division. Accordingly, under Paragraph 3 of Section 1 of
Republic Act (R.A.) No. 8294, amending Section 1 of Presidential Decree (P.D.)
No. 1866, such use of an unlicensed firearm shall be considered as an
aggravating circumstance, to wit:

xxxx

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.

x x x x.

Under Article 249 of the RPC, the penalty for homicide is reclusion temporal.
There being an aggravating circumstance of use of unlicensed firearm, the
penalty imposable on petitioner should be in its maximum period.38 Applying the
Indeterminate Sentence Law, the petitioner shall be sentenced to an
indeterminate penalty of from ten (10) years and one (1) day of prision mayor
maximum, as the minimum penalty, to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal maximum, as the maximum penalty.

As to the award of civil indemnity, moral damages, and damages for loss of
earning capacity in favor ofprivate respondent, we sustain the findings of the CA
in so far as they are in accordance with prevailing jurisprudence. In addition, we
find the grant of exemplary damages in the present case in order, since the
presence of special aggravating circumstance of use of unlicensed firearm has
been established.39 Based on current jurisprudence, the award of exemplary
damages for homicide is ₱30,000.00.40

Finally, pursuant to this Court’s ruling in Nacar v. Gallery Frames,41 an interest of

six percent (6%) per annum on the aggregate amount awarded for civil indemnity
and damages for loss of earning capacity shall be imposed, computed from the
time of finality of this Decision until full payment thereof.

WHEREFORE, the petition is DENIED. The May 7, 2009 Decision and August
19, 2009 Resolution of the Court of Appeals in CA-G.R. CV No. 89257, finding
petitioner Sherwin Dela Cruz guilty beyond reasonable doubt of the crime of
Homicide, are hereby AFFIRMED with MODIFICATIONS, to wit:

(1) Petitioner shall be sentenced to an indeterminate penalty of from ten (10)

years and one (1) day of prision mayor maximum, as the minimum penalty, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal
maximum, as the maximum penalty;

(2) Petitioner is likewise ORDERED to pay the heirs of the victim the following:

a. the amount of ₱50,000.00 as civil indemnity;

b. the amount of ₱50,000.00 as moral damages;

c. the amount of ₱25,000.00 as temperate damages;

d. the amount of ₱30,000.00 as exemplary damages;

e. the amount of ₱3,022,641.71 as damages for loss of earning capacity;

f. for the civil indemnity and the damages for loss of earning capacity, an interest
of six percent (6%) per annum, computed from the time of finality of this Decision
until full payment thereof; and

g. the costs of the litigation.

SO ORDERED.

G.R. No. 195021--JUSTIFYING CIRCUMSTANCE ACTED IN DEFENSE OF

RELATIVES

NICOLAS VELASQUEZ and VICTOR VELASQUEZ, Petitioners

vs
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

LEONEN, J.:

An accused who pleads a justifying circumstance under Article 11 of the Revised

Penal Code1 admits to the commission of acts, which would otherwise engender
criminal liability. However, he asserts that he is justified in committing the acts. In
the process of proving a justifying circumstance, the accused risks admitting the
imputed acts, which may justify the existence of an offense were it not for the
exculpating facts. Conviction follows if the evidence for the accused fails to prove
the existence of justifying circumstances.

Through this Petition for Review on Certiorari2 under Rule 45 of the Rules of
Court, the accused petitioners pray that the assailed March 17, 2010 Decision3
and December 10, 2010 Resolution4 of the Court of Appeals in CA-G.R. CR. No.
31333 be reversed and set aside, and that they be absolved of any criminal
liability.

The Court of Appeals' assailed rulings sustained the July 25, 2007 Decision5 of
the Regional Trial Court, Branch 41, Dagupan City, which found petitioners guilty
beyond reasonable doubt of attempted murder.

In an Information, petitioners Nicolas Velasquez (Nicolas) and Victor Velasquez

(Victor), along with four (4) others -Felix Caballeda (Felix), Jojo Del Mundo (Jojo),
Sonny Boy Velasquez (Sonny), and Ampong Ocumen (Ampong) - were charged
with attempted murder under Article 248,6 in relation to Article 6,7 of the Revised
Penal Code, as follows:

That on May 24, 2003 in the evening at Brgy. Palua, Mangaldan, Pangasinan
and within the jurisdiction of this Honorable Court, the above named accused
while armed with stones and wooden poles, conspiring, confederating and
mutually helping one another, with intent to kill, with treachery and abuse of
superior strength, did, then and there willfully, unlawfully and feloniously attack,
maul and hit JESUS DEL MUNDO inflicting upon him injuries in the vital parts of
his body, 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 but nevertheless did not produce it by reason of some causes or
accident other than their own spontaneous desistance to his damage and
prejudice.

Contrary to Article 248 in relation to Article 6 and 50 of the Revised Penal Code.8

All accused, except Ampong, who remained at large, pleaded not guilty upon
arraignment.9 Trial then ensued.10

According to the prosecution, on May 24, 2003, at about 10:00 p.m., the spouses
Jesus and Ana Del Mundo (Del Mundo Spouses) left their home to sleep in their
nipa hut, which was about 100 meters away.11 Arriving at the nipa hut, the Del
Mundo Spouses saw Ampong and Nora Castillo (Nora) in the midst of having
sex.12 Aghast at what he perceived to be a defilement of his property, Jesus Del
Mundo (Jesus) shouted invectives at Ampong and Nora, who both scampered
away.13 Jesus decided to pursue Ampong and Nora, while Ana Del Mundo (Ana)
left to fetch their son, who was then elsewhere.14 Jesus went to the house of
Ampong's aunt, but neither Ampong nor Nora was there.15 He began making his
way back home when he was blocked by Ampong and his fellow accused.16

Without provocation, petitioner Nicolas hit the left side of Jesus' forehead with a
stone. Petitioner Victor also hit Jesus' left eyebrow with a stone.17 Accused Felix
did the same, hitting Jesus above his left ear.18 Accused Sonny struck Jesus
with a bamboo, hitting him at the back, below his right shoulder.19 Ampong
punched Jesus on his left cheek. The accused then left Jesus on the ground,
bloodied. Jesus crawled and hid behind blades of grass, fearing that the accused
might return. He then got up and staggered his way back to their house.20

Jesus testified on his own ordeal. In support of his version of the events, the
prosecution also presented the testimony of Maria Teresita Viado (Maria
Teresita). Maria Teresita was initially approached by Jesus' wife, Ana, when
Jesus failed to immediately return home.21 She and Ana embarked on a search
for Jesus but were separated.22 At the sound of a man being beaten, she hid
behind some bamboos.23 From that vantage point, she saw the accused
mauling Jesus.24 The prosecution noted that about four (4) or five (5) meters
away was a lamp post, which illuminated the scene.25

At the Del Mundo Spouses' residence, Maria Teresita recounted to them what
she had witnessed (Jesus had managed to return home by then).26 Ana and
Maria Teresita then brought Jesus to Barangay Captain Pili ta Villanueva, who
assisted them in bringing Jesus to the hospital.27

After undergoing an x-ray examination, Jesus was found to have sustained a

crack in his skull.28 Dr. Jose D. De Guzman (Dr. De Guzman) issued a medico-
legal certificate indicating the following findings:

x.x. Positive Alcoholic Breath

3 ems lacerated wound fronto-parietal area left

1 cm lacerated wound frontal area left

Abrasion back left multi linear approximately 20 cm

Abrasion shoulder left, confluent 4x10 cm

Depressed skull fracture parietal area left.

x.x.29

Dr. De Guzman noted that Jesus' injuries required medical attention for four (4) to
six (6) weeks.30 Jesus was also advised to undergo surgery.31 He was,
however, unable to avail of the required medical procedure due to shortage of
funds.32

The defense offered a different version of events.

According to the accused, in the evening of May 24, 2003, petitioner Nicolas was
roused in his sleep by his wife, Mercedes Velasquez (Mercedes), as the nearby
house of petitioner Victor was being stoned.33

Nicolas made his way to Victor's place, where he saw Jesus hacking Victor's
door. Several neighbors - the other accused - allegedly tried to pacify Jesus.34
Jesus, who was supposedly inebriated, vented his ire upon Nicolas and the other
accused, as well as on Mercedes.35 The accused thus responded and countered
Jesus' attacks, leading to his injuries.36

In its July 25, 2007 Decision,37 the Regional Tnal Court, Branch 41, Dagupan
City found petitioners and Felix Caballeda guilty beyond reasonable doubt of
attempted murder.38 The court also found Sonny Boy Velasquez guilty beyond
reasorable doubt of less serious physical injuries.39 He was found to have hit
Jesus on the back with a bamboo rod. Jojo Del Mundo was acquitted.40 The
case was archived with respect to Ampong, as he remained at large.41

The dispositive portion of its Decision read:

WHEREFORE, premises considered, judgment is hereby rendered finding

accused NICOLAS VELASQUEZ, VICTOR VELASQUEZ and FELIX
CABALLEDA guilty beyond reasonable doubt of the crime of Attempted Murder
defined and penalized under Article 248 in relation to Art.ides 6, paragraph 3 and
51 of the Revised Penal Code, and pursuant to the law, sentences each of them
to suffer on (sic) indeterminate penalty of four (4) years and one (1) day of
Arrested (sic) Mayor in its maximum period as minimum to eight (8) years of
Prison (sic) Correctional (sic) in its maximum period to Prison (sic) Mayor in its
medium period as maximum and to pay proportionately to private complainant
Jesus del Mundo the amount of Php55,000.00 as exemplary damages, and to
pay the cost of suit.
The Court likewise finds the accused SONNY BOY VELASQUEZ [guilty] beyond
reasonable doubt of the [crime] of Less Serious Physical Injuries defined and
penalized under Article 265 of the Revised Penal Code and pursuant thereto, he
is hereby sentenced to suffer the penalty of Arresto Mayor on one (1) month and
one (1) day to six (6) months.

Accused JOJO DEL MUNDO is hereby acquitted on the ground of absence of

evidence.

With respect to accused AMPONG OCUMEN, the case against him is archived
without prejudice to its revival as soon as he is arrested and brought to the
jurisdiction of this Court.42

Petitioners and Felix Caballeda filed a motion for reconsideration, which the
Regional Trial Court denied.43

On petitioners' and Caballeda's appeal, the Court of Appeals found that

petitioners and Caballeda were only liable for serious physical injuries because
"first, intent to kill was not attendant inasmuch as the accused-appellants, despite
their superiority in numbers and strength, left the victim alive and, second, none
of [the] injuries or wounds inflicted upon the victim was fatal."44 The Court of
Appeals thus modified the sentence imposed on petitioners and Caballeda.

The dispositive portion of its assailed March 1 7, 2010 Decision45 read:

WHEREFORE, premises considered, the July 25, 2007 Decision of Branch 41,
Regional Trial Court of Dagupan City is hereby MODIFIED. Instead, accused-
appellants are found guilty of Serious Physical Injuries and each of them is
sentenced to suffer the penalty of imprisonment of six (6) months of arresto
mayor as minimum to four (4) years and two (2) months of prisi6n correccional as
maximum.

SO ORDERED.46 (Emphasis in the original)

Following the denial of their Motion for Reconsideration, petitioners filed the
present Petition.47 They insist on their version of events, particularly on how they
and their co-accused allegedly merely acted in response to Jesus Del Mundo's
aggressive behavior.

For resolution is the issue of whether petitioners may be held criminally liable for
the physical harm inflicted on Jesus Del Mundo. More specifically, this Court is
asked to determine whether there was sufficient evidence: first, to prove that
justifying circumstances existed, and second, to convict the petitioners.

Petitioners' defense centers on their claim that they acted in defense of

themselves, and also in defense of Mercedes, Nicolas' wife and Victor's mother.
Thus, they invoke the first and second justifying circumstances under Article 11 of
the Revised Penal Code:

ARTICLE 11. Justifying Circumstances. - The following do not incur any criminal
liability:

1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

2. Anyone who acts in defense of the person or rights of his spouse, ascendants,
descendants, or legitimate, natural or adopted brothers or sisters, or of his
relatives by affinity in the same degrees, and those by consanguinity within the
fourth civil degree, provided that the first and second requisites prescribed in the
next preceding circumstance are present, and the further requisite, in case the
provocation was given by the person attacked, that the one making defense had
no part therein.

A person invoking self-defense (or defense of a relative) admits to having inflicted

harm upon another person - a potential criminal act under Title Eight (Crimes
Against Persons) of the Revised Penal Code. However, he or she makes the
additional, defensive contention that even as he or she may have inflicted harm,
he or she nevertheless incurred no criminal liability as the looming danger upon
his or her own person (or that of his or her relative) justified the infliction of
protective harm to an erstwhile aggressor.

The accused's admission enables the prosecution to dispense with discharging

its burden of proving that the accused performed acts, which would otherwise be
the basis of criminal liability. All that remains to be established is whether the
accused were justified in acting as he or she did. To this end, the accused's case
must rise on its own merits:

It is settled that when an accused admits [harming] the victim but invokes self-
defense to escape criminal liability, the accused assumes the burden to establish
his plea by credible, clear and convincing evidence; otherwise, conviction would
follow from his admission that he [harmed] the victim. Self-defense cannot be
justifiably appreciated when uncorroborated by independent and competent
evidence or when it is extremely doubtful by itself. Indeed, in invoking self-
defense, the burden of evidence is shifted and the accused claiming self-defense
must rely on the strength of his own evidence and not on the weakness of the
prosecution.48

To successfully invoke self-defense, an accused must establish: "(1) unlawful

aggression on the part of the victim; (2) reasonable necessity of the means
employed to prevent or repel such aggression; and (3) lack of sufficient
provocation on the part of the person resorting to self-defense."49 Defense of a
relative under Article 11 (2) of the Revised Penal Code requires the same first
two (2) requisites as self-defense and, in lieu of the third "in case the provocation
was given by the person attacked, that the one making the defense had no part
therein."50

The first requisite - unlawful aggression - is the condition sine qua non of self-
defense and defense of a relative:

At the heart of the claim of self-defense is the presence of an unlawful

aggression committed against appellant. Without unlawful aggression, self-
defense will not have a leg to stand on and this justifying circumstance cannot
and will not be appreciated, even if the other elements are present. Unlawful
aggression refers to an attack amounting to actual or imminent threat to the life
and limb of the person claiming self-defense.51

The second requisite - reasonable necessity of the means employed to prevent

or repel the aggression - requires a reasonable proportionality between the
unlawful aggression and the defensive response: "[t]he means employed by the
person invoking self-defense contemplates a rational equivalence between the
means of attack and the defense."52 This is a matter that depends on the
circumstances:

Reasonable necessity of the means employed does not imply material

commensurability between the means of attack and defense. What the law
requires is rational equivalence, in the consideration of which will enter as
principal factors the emergency, the imminent danger to which the person
attacked is exposed, and the instinct, more than the reason, that moves or impels
the defense, and the proportionateness thereof does not depend upon the harm
done, but rests upon the imminent danger of such injury ... As WE stated in the
case of People vs. Lara, in emergencies of this kind, human nature does not act
upon processes of formal reason but in obedience to the instinct of self-
preservation; and when it is apparent that a person has reasonably acted upon
this instinct, it is the duty of the courts to sanction the act and hold the act
irresponsible in law for the consequences.53 (Citations omitted)

The third requisite - lack of sufficient provocation - requires the person mounting
a defense to be reasonably blameless. He or she must not have antagonized or
incited the attacker into launching an assault. This also requires a consideration
of proportionality. As explained in People v. Boholst-Caballero,54 "[p]rovocation is
sufficient when it is proportionate to the aggression, that is, adequate enough to
impel one to attack the person claiming self-defense."55

II

We find petitioners' claims of self-defense and defense of their relative,

Mercedes, to be sorely wanting.

Petitioners' entire defense rests on proof that it was Jesus who initiated an
assault by barging into the premises of petitioners' residences, hacking Victor's
door, and threatening physical harm upon petitioners and their companions. That
is, that unlawful aggression originated from Jesus.

Contrary to what a successful averment of self-defense or defense of a relative

requires, petitioners offered nothing more than a self-serving, uncorroborated
claim that Jesus appeared out of nowhere to go berserk in the vicinity of their
homes. They failed to present independent and credible proof to back up their
assertions. The Regional Trial Court noted that it was highly dubious that Jesus
would go all the way to petitioners' residences to initiate an attack for no apparent
reason.56

The remainder of petitioners' recollection of events strains credulity. They claim

that Jesus launched an assault despite the presence of at least seven (7)
antagonists: petitioners, Mercedes, and the four (4) other accused. They further
assert that Jesus persisted on his assault despite being outnumbered, and also
despite their and their co-accused's bodily efforts to restrain Jesus. His
persistence was supposedly so likely to harm them that, to neutralize him, they
had no other recourse but to hit him on the head with stones for at least three (3)
times, and to hit him on the back with a bamboo rod, aside from dealing him with
less severe blows.57

As the Regional Trial Court noted, however:

The Court takes judicial notice of (the) big difference in the physical built of the
private complainant and accused Victor Velasquez, Sonny Boy Velasquez, Felix
Caballeda and Jojo del Mundo, private complainant is shorter in height and of
smaller built than all the accused.

The said accused could have had easily held the private complainant, who was
heavily drunk as they claim, and disarmed him without the need of hitting him.58

The injuries which Jesus were reported to have sustained speak volumes:

3 ems lacerated wound fronto-parietal area left

1 cm lacerated wound frontal area left

Abrasion back left multi linear approximately 20 cm

Abrasion shoulder left, confluent 4x 10 cm

Depressed skull fracture parietal area left.59

Even if it were to be granted that Jesus was the initial aggressor, the beating
dealt to him by petitioners and their co-accused was still glaringly in excess of
what would have sufficed to neutralize him. It was far from a reasonably
necessary means to repel his supposed aggression. Petitioners thereby fail in
satisfying the second requisite of self-defense and of defense of a relative.

III

In addition to their tale of self-defense, petitioners insist that the testimony of

Maria Teresita is not worthy of trust because she parted ways with Ana while
searching for Jesus.60 They characterize Maria Teresita as the prosecution's
"lone eyewitness."61 They make it appear that its entire case hinges on her.
Thus, they theorize that with the shattering of her credibility comes the complete
and utter ruin of the prosecution's case.62 Petitioners claim that Maria Teresita is
the prosecution's lone eyewitness at the same time that they acknowledge Jesus'
testimony, which they dismissed as laden with inconsistencies.63

These contentions no longer merit consideration.

Petitioners' averment of justifying circumstances was dispensed with the need for
even passing upon their assertions against Maria Teresita's and Jesus'
testimonies.1âwphi1 Upon their mere invocation of self-defense and defense of a
relative, they relieved the prosecution of its burden of proving the acts
constitutive of the offense. They took upon themselves the burden of establishing
their innocence, and cast their lot on their capacity to prove their own affirmative
allegations.1âwphi1 Unfortunately for them, they failed.

Even if we were to extend them a measure of consideration, their contentions fail

to impress.

Petitioners' primordial characterization of Maria Teresita as the "lone eyewitness,"

upon whose testimony the prosecution's case was to rise or fall, is plainly
erroneous. Apart from her, Jesus testified about his own experience of being
mauled by petitioners and their co-accused. Maria Teresita's testimony was only
in support of what Jesus recounted.

Moreover, we fail to see how the mere fact of Maria Teresita's having parted
ways with Ana while searching for Jesus diminishes her credibility. No
extraordinary explanation is necessary for this. Their having proceeded
separately may be accounted for simply by the wisdom of how independent
searches enabled them to cover more ground in less time.

Regarding Jesus' recollection of events, petitioners' contention centers on Jesus'

supposedly flawed recollection of who among the six (6) accused dealt him,
which specific blow, and using which specific weapon.64 These contentions are
too trivial to even warrant an independent, point by point audit by this Court.

Jurisprudence is replete with clarifications that a witness' recollection of crime

need not be foolproof: "Witnesses cannot be expected to recollect with exactitude
every minute detail of an event. This is especially true when the witnesses testify
as to facts which transpired in rapid succession, attended by flurry and
excitement."65 This is especially true of a victim's recollection of his or her own
harrowing ordeal. One who has undergone a horrifying and traumatic experience
"cannot be expected to mechanically keep and then give an accurate account"66
of every minutiae.

Certainly, Jesus' supposed inconsistencies on the intricacies of who struck him

which specific blow can be forgiven. The merit of Jesus' testimony does not
depend on whether he has an extraordinary memory despite being hit on the
head multiple times. Rather, it is in his credible narration of his entire ordeal, and
how petitioners and their co-accused were its authors. On this, his testimony was
unequivocal.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in

CA-G.R. CR. No. 31333 is AFFIRMED.

SO ORDERED.

G.R NO 199875 -- exempting circumstance -- insane

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
EDWIN ISLA Y ROSSELL, Accused-Appellant.

DECISION

MENDOZA, J.:

This is an appeal from the December 17, 2010 Decision1 of the Court of Appeals
(CA) in CA-G.R. CR No. 28761, which affirmed the April 26, 2004 Decision2 of
the Regional Trial Court, Branch 98, Quezon City (RTC), finding the accused
guilty beyond reasonable doubt of the crimes of Rape and Frustrated Murder.

On July 25, 1997, two separate Informations for Frustrated Murder and Rape
were filed before the RTC, docketed as Criminal Case Nos. Q-97-72078 and Q-
97-72079, respectively. These informations read:

Criminal Case No. Q-97-72078

The undersigned accuses EDWIN ISLA Y ROSSELL of the crime of Frustrated

Murder, committed as follows:

That on or about the 21st day of July, 1997, in Quezon City, Philippines, the said
accused, with intent to kill, with treachery and with evident premeditation, with
abuse of superior strength, did then and there wilfully, unlawfully and feloniously
attack, assault and employ personal violence upon the person of AAA3 by then
and there stabbing her with a kitchen knife, hitting her twice below the chest,
thereby inflicting upon said AAA serious and mortal wounds, the offender thus
performing all the acts of execution which would produce death, which, however,
was not produced by reason of cause independent of the will of the perpetrator,
that is, the timely medical intervention, to the damage and prejudice of the said
offended party.

CONTRARY TO LAW.4

Criminal Case No. Q-97-72079

The undersigned accuses EDWIN ISLA Y ROSSELL, of the crime of Rape,

committed as follows:

That on or about the 21st day of July, 1997, in Quezon City, Philippines, the said
accused by means of force and intimidation, to wit: by then and there wilfully,
unlawfully and feloniously undress her and put himself on top of her, and
thereafter have carnal knowledge with the undersigned complainant against her
will and without her consent.

CONTRARY TO LAW.5

Evidence for the Prosecution

During the trial, the prosecution presented three (3) witnesses; namely:
complainant AAA; Dr. Ma. Cristina Freyra (Dr. Freyra), the chief of the medico-
legal division of the Philippine National Police (PNP) Crime Laboratory; and Dr.
Reynaldo Perez (Dr. Perez) of the East Avenue Medical Center, AAA’s attending
physician.

According to AAA’s account, on July 21, 1997, at around 3:00 o’clock in the
afternoon, she was inside her rented house together with her two (2) children,
aged 1 ½ years old and 9 months old, respectively. She then noticed that
accused Edwin Isla (Isla) was standing by the door of her kitchen. He asked her
what time her landlady would be arriving and she answered that she had no idea.
Thereafter, she opened the door of the kitchen, hoping that passersby would see
him inside the house. After fifteen (15) minutes, she was startled when he
suddenly poked a knife on her neck and pulled her inside the bedroom. By this
time, she noticed that she had already closed the window and the door of the
living room. She pleaded and begged for mercy but to no avail. She was warned
not to shout or resist otherwise she would be stabbed.

Inside the bedroom, she was made to lie down on the floor because there was no
bed. Isla placed himself on top of her and then he removed her upper clothing.
He raised her bra, exposing her breasts and then kissed them. Eventually, he
made her spread her legs and had carnal knowledge with her. While he was
committing the dastardly act, she noticed a knife pointed at her. She also
informed the trial court that during the whole ordeal, her children were present
and witnessed everything.

When Isla stood up after raping her, she noticed that the knife he was holding
was already bloodstained. At this point, she found out that she was stabbed with
the knife. She tried to take hold of the knife while shouting for help. In response,
Isla struck her the second time, this time, under her lower left breast. She also
sustained a wound on her palm while trying to disarm him. Then the knife fell to
the floor. It was at this moment that she was able to get hold of it and she threw it
outside through a broken window in the room. Thereafter, Isla scampered out of
the house through the backdoor.

In a little while, a neighbor came knocking at the door and was able to see AAA’s
condition. She was taken to the East Avenue Medical Center (EAMC) for medical
attention and was confined there for five (5) days.

At the hospital, Dr. Freyra conducted an examination on AAA upon the request of
the station commander of the PNP Lagro Police Station. Based on her findings,
AAA sustained eleven (11) body injuries, two (2) of which were stab wounds, six
(6) incised wounds and two (2) contusions. The stab wounds required medical
attendance of not less than 30 days. An examination of AAA’s sexual organ
showed congestions and abrasion in the labia minora and yielded negative result
on the presence of spermatozoa.

AAA’s attending physician, Dr. Perez, on the other hand, testified that she had
multiple stab wounds on the left side of the chest. Her chest x-ray result
disclosed an accumulation of blood in the thorax which required him to conduct a
procedure to drain the blood. He concluded that the stab wounds were severe
and fatal which could have led to AAA’s death had it not been for the timely
medical attendance.

Evidence for the Defense

For the defense, accused Edwin Isla was presented together with two (2)
psychiatric doctors who examined him.

Isla never denied that he raped AAA on July 21, 1997. Invoking the defense of
insanity, he testified that before the incident, he and AAA had an illicit relationship
for about two months until they broke up. He had to use a knife to be able to
have sexual intercourse with her. It was the first time that he and AAA had sex.
After raping her, he admitted stabbing AAA twice, first on her left breast and then
on her lower right breast "for reason he cannot understand."6 He also punched
her several times when she attempted to grab the knife from him.

As to Isla’s claim of insanity, Dr. Juan Villacorta (Dr. Villacorta) and Dr. Mary
Gomez (Dr. Gomez) of the National Center for Mental Health (NCMH) were
presented as qualified expert witnesses.

Dr. Villacorta testified that Isla was suffering from a major depressive disorder
with psychotic features; that he manifested psychosis on account of his
hallucinations, poor impulse control, poor judgment, and low frustration tolerance;
and that he exhibited such behavioral pattern immediately prior to being jailed.
Dr. Villacorta, however, could not say with definite certainty or not Isla was
suffering from such mental disorder on July 21, 1997 as there was no
examination conducted on Isla on the said date.7

To corroborate Dr. Villacorta’s findings, Dr. Gomez was presented. After a

thorough interview and psychiatric testing on Isla, she likewise observed that Isla
was suffering from a major depressive disorder which impaired his mental
faculties. She said that his psychosis could have been existing prior to or about
July 21, 1997 but again, like Dr. Villacorta, she opined that such finding could not
be conclusive because of lack of information from other informants during that
time.8

Ruling of the RTC

On April 26, 2004, the RTC convicted Isla of the crimes of rape and frustrated
murder. It did not give credence to his defense of insanity because it noted that
Isla committed the crimes charged during a lucid interval. He knew that what he
was doing was unlawful. There was no indication that he was deprived of reason
or discernment and freedom of will when he committed all the acts attending the
commission of the crime. The RTC gave no weight to the assertion of the
defense that, based on the evaluations made by the doctors from NCMH, Isla
was suffering from psychosis since 1992. It was of the impression that there was
nothing in the testimony of these expert witnesses that Isla was suffering from
psychosis long before the incident.9 On this note, his condition could not be
equated with imbecility; hence, he could not be exempt from criminal liability.
Thus, the RTC ruled in this wise:

WHEREFORE, premises considered, judgment in these cases is hereby

rendered as follows:

1. In Criminal Case No. Q-97-72079, the Court finds accused Edwin Isla y Rosell
GUILTY beyond reasonable doubt of the crime of RAPE as defined and
penalized under Art. 335 of the Revised Penal Code, and hereby SENTENCES
him to suffer the penalty of reclusion perpetua and to indemnify complainant AAA
the amount of Php50,000.00 as civil indemnity ex delicto, the amount of
Php50,000.00 as moral damages, and to pay the cause of suit.

2. In Criminal Case No. Q-97-72078, the Court finds accused Edwin Isla y Rosell
GUILTY beyond reasonable doubt of the crime of Frustrated Murder and hereby
SENTENCES him to suffer the indeterminate penalty of eight (8) years and one
(1) day of prision mayor as minimum to seventeen (17) years and four (4) months
of reclusion temporal as maximum, and to indemnify complainant the sum of
P10,000.00 for actual damages, and to pay the cause of suit.

SO ORDERED.10

Ruling of the CA

Aggrieved, Isla interposed an appeal with the CA. On December 17, 2010, the
CA denied the appeal and affirmed the RTC decision which found Isla to have
acted with discernment when he committed the crimes.According to the CA, Isla
exactly knew that what he was doing was evil so much so that he had to employ
cunning means, by discreetly closing the windows and the door of the house and
by resorting to threats and violence, to ensure the consummation of his dastardly
deed. The fact that he scampered away after AAA was able to take the knife from
him, would only show that he fully understood that he committed a crime for
which he could be held liable.

The CA did not give weight to the expert testimonies given by the two psychiatric
doctors either. Since the mental examination on Isla was taken four to six years
after the commission of the crimes, the doctors could not say with definite
certainty that he was suffering from psychosis immediately before or
simultaneous to the commission of the crimes which was very vital for said
defense to prosper. Thus, the CA affirmed the RTC decision.11
Hence, the present appeal.

Both the prosecution and the defense opted not to file any supplemental briefs
and manifested that they were adopting their arguments in their respective briefs
filed before the CA. In his Appellant’s Brief, the defense presented the following:

I.

THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING THE ACCUSED–

APPELLANT NOTWITHSTANDING THAT HIS GUILT HAS NOT BEEN PROVEN
BEYOND REASONABLE DOUBT.

II.

THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-
APPELLANT WAS INSANE AT THE TIME OF THE COMMISSION OF THE
OFFENSE.

At the outset, this Court notes that there is no more question as to whether or not
AAA was raped by Isla. The latter never denied this fact which can be gleaned
from his direct testimony, to wit:

Atty. Erasmo (defense counsel)

Q: So when you left at 4:00, where did you proceed?

A: To my aunt at Balintawak.

Q: How about AAA, what happened to her if you know?

A: she was raped and stabbed, sir.

Q: Who raped and stabbed AAA, if you know?

A: Me, sir.

Q: What time did this happen?

A: 3:00 o’clock, sir.

Q: Now, how did you rape AAA?

A: I went inside their house.12

(Emphases supplied)

That being so, what is left for this jurisdiction to resolve is whether or not Isla’s
claim of insanity is creditable so as to exculpate him of the crimes he admittedly
committed.

This Court is not convinced with Isla’s defense.

Article 12 of the Revised Penal Code (RPC) provides for one of the
circumstances which will exempt one from criminal liability which is when the
perpetrator of the act was an imbecile or insane, unless the latter has acted
during a lucid interval. This circumstance, however, is not easily available to an
accused as a successful defense. Insanity is the exception rather than the rule in
the human condition. Under Article 800 of the Civil Code, the presumption is that
every human is sane. Anyone who pleads the exempting circumstance of insanity
bears the burden of proving it with clear and convincing evidence. It is in the
nature of confession and avoidance. An accused invoking insanity admits to have
committed the crime but claims that he or she is not guilty because of insanity.
The testimony or proof of an accused's insanity must, however, relate to the time
immediately preceding or simultaneous with the commission of the offense with
which he is charged.13

In the case at bench, the defense failed to overcome the presumption of sanity.
The respective testimonies of Dr. Villacorta and Dr. Gomez of the NCMH, as
qualified expert witnesses, failed to support its claim of insanity. As observed by
the CA, the mental examination on Isla taken four to six years after the incident
happened in July 1997, in effect, showed that it could not be concluded with
certainty that he was suffering from such psychosis immediately before or
simultaneous to the commission of the crimes. The expert witnesses themselves
opined that their findings were not conclusive as to whether Isla was insane on
that fateful day of July 21, 1997, as no examination was made on said day or for
lack of information from other informants during that time.14

This Court also agrees with the observation of the RTC as affirmed by the CA
that Isla acted with discernment as can be deduced from his acts before, during
and after the commission of the crimes with which he was charged. The RTC
wrote:
The overt acts committed by the accused are attributed to a criminal mind, not a
lunatic. There is no indication whatsoever that he was completely deprived of
reason or discernment and freedom of will when he stood for a while by the door
of complainant’s house, then entered it, toyed with a disconnected telephone set,
and cunningly poked a knife at complainant’s neck and dragged her inside the
room where he raped her. The fact that he first discreetly closed the door and the
window before he approached and poked a knife at complainant, then, as he laid
on top of her, ordered her to undress, kissed her breast, separated apart her legs
with his own legs, and satisfied his lust, all the while holding a knife with his right
hand poked at complainant’s body, are calculated means to ensure
consummation of his lewd design. These are by no means the workings of an
imbecile, but by one engulfed by lust.15

In the case of People vs. Rafanan, Jr., this Court has held that the defense of
insanity may be accepted as an exempting circumstance on the test of cognition,
which requires a complete deprivation of intelligence, not only of the will, in
committing the criminal act. Thus, when the accused in said case, threatened the
victim with death in case she reported her ravishment indicated that he was
aware of the reprehensible moral depravity of that assault and that he was not
deprived of intelligence.16

If Isla had become insane after the commission of the crime, such fact does not
alter the situation and the Court’s ruling is the same. His defense still fails
considering that he was not insane during the commission of the acts charged.
Any problem regarding his present mental condition should be dealt with
administratively.

With respect to the stabbings, it appears that Isla committed two acts. The first
was while he was ravishing AAA. The Court considers this and the rape as one
continuous act, the stabbing being necessary, as far as he was concerned, for
the successful perpetration of the crime. When he testified, Isla claimed that he
had to use the knife so he could have sexual intercourse with her.

The second stabbing took place after consummation of the rape act. According to
AAA, after her defilement, she noticed the knife bloodied and she tried to wrest it
from him. In their struggle, she was stabbed under her lower left breast but she
was able to force Isla to drop the knife. At this point, Isla was able to escape
through the backdoor. This second stabbing is a separate and distinct offense as
it was not a necessary means to commit the rape. It was intended to do away
with her life. Thus, it has been written, "Where a girl was raped and then
strangled to death, the crimes are the separate crimes of rape and homicide, not
complex."17 This was also the ruling in People v. Dawandawan,18 where it was
written:

The physical injuries which could have caused the victim's death were not the
result of the rape committed; neither was the slashing a necessary means for
committing the rape. Independently of the slashing of the victim's neck and the
stabbing, the accused was able to consummate the rape. The physical injuries
were inflicted after the rape and were not a necessary means to commit the
same. Hence, the crimes committed are the two separate crimes of Rape and
Frustrated Homicide.

The Court, however, finds itself unable to agree that the second crime committed
was frustrated murder. In the information, it was alleged that the stabbing was
committed with treachery, evident premeditation and abuse of superior strength.
There is, however, nothing in the records of the case that would show the
presence of the said qualifying circumstances.

Evidently, there was no treachery. For treachery to exist "the offender commits
any of the crimes against persons, employing means, methods, or forms in the
execution, which tend directly and specially to insure its execution, without risk to
the offender arising from the defense which the offended party might make." It is
important in ascertaining the existence of treachery that it be proven that the
attack was made swiftly, deliberately, unexpectedly, and without a warning, thus
affording the unsuspecting victim no chance to resist or escape the attack.19 In
the case at bench, Isla’s attack was not sudden, swift, deliberate and without
warning. He stabbed AAA during the course of the struggle. Thus, the
prosecution failed to show that the stabbing was so calculated as not to afford
AAA the chance to evade the attack.

Moreover, the attack was not with evident premeditation. The elements of evident
premeditation are: (1) a previous decision by the accused to commit the crime;
(2) overt act/acts manifestly indicating that the accused clung to his
determination; and (3) a lapse of time between the decision to commit the crime
and its actual execution sufficient to allow accused to reflect upon the
consequences of his acts. These circumstances were not obtaining in the case at
bench. An examination of the facts would reveal that there was no sufficient time
that elapsed for Isla to decide to commit the crime and reflect on its
consequences. Moreover, there was no showing that he performed other overt
acts to show that he was determined to commit murder. The essence of evident
premeditation is that the execution of the criminal act must be preceded by cool
thought and reflection upon the resolution to carry out the criminal intent, during
the space of time sufficient to arrive at a calm judgment.20 When Isla stabbed
AAA the second time, it was more of a reaction to the possibility of his being
disarmed by his victim rather than a well-planned attack to kill her.

Neither was there an abuse of superior strength. There was no showing that Isla
took advantage of his superior strength to consummate the crime.

For said reasons, the crime charged should have been frustrated homicide only.
Consequently the penalty should be changed.

Under Article 249 of the RPC, the imposable penalty for one found guilty of
Homicide is reclusion temporal, whose duration is from twelve (12) years and
one (1) day to twenty (20) years. Considering that the crime is frustrated, Article
250 in relation to Article 50 of the RPC provides that the penalty next lower in
degree of the penalty prescribed by law for the consummated felony should be
imposed. Thus, the penalty should only be prision mayor, the duration of which is
from six (6) years to twelve (12) years.

Considering that there are neither aggravating nor mitigating circumstances,

Article 64 of the RPC provides that the penalty should be in its medium period
which is eight (8) years and one (1) day to ten (10) years.

Applying the Indeterminate Sentence Law, the minimum term should be within
the range of prision correccional, the penalty next lower in degree. Hence, for the
crime of frustrated homicide, Isla should suffer the indeterminate penalty ranging
from four (4) years of prision correccional, as minimum, to eight (8) years and
one (1) day of prision mayor, as maximum.

With respect to the civil aspect, he should also be made to pay AAA the amount
of P30,000.00 as exemplary damages in addition to the civil indemnity ex delicto
and moral damages awarded. Said award is in consonance with prevailing
jurisprudence on simple rape wherein exemplary damages are awarded in order
to set a public example and to protect hapless individuals from sexual
molestation.21

In lieu of the award of P10,000.00 as actual damages, an award of temperate

damages should be given instead. The Court has consistently held that in order
for one to be entitled to actual damages, the claim must not only be capable of
proof, but must actually be proved with a reasonable degree of certainty. Courts
cannot simply rely on speculation, conjecture or guesswork in determining the
fact and amount of damages but there must be competent proof of the actual
amount of loss. Credence can be given only to claims which are duly supported
by receipts.22

In this case, AAA failed to provide receipts to substantiate her claim. This Court,
however, is not unmindful of the fact that AAA was hospitalized for about five (5)
days. Considering that the expenses she incurred cannot be proved with
certainty, an award of temperate damages is but proper. Temperate damages
may be allowed in cases where from the nature of the case, definite proof of
pecuniary loss cannot be adduced, although the court is convinced that the
aggrieved party suffered some pecuniary loss.23 An award of P8,000.00 as
temperate damages is, to the Court's mind, just.1âwphi1

WHEREFORE, the Court AFFIRMS with ,MODIFICATION the December 17,

2010 Decision of the Court of Appeals in CA-G.R. No. 28761 as follows:

1. In Criminal Case No. Q-97-72079, finding the accused Edwin Isla y Rossell
guilty beyond reasonable doubt of the crime of Rape, the Court hereby
sentences him to suffer the penalty of reclusion perpetua; to pay AAA P50,000.00
as civil indemnity ex delicto, and P50,000.00 as moral damages, P30,000.00 as
exemplary damages; and to pay the cost of suit.

2. In Criminal Case No. Q-97-72078, finding the accused Edwin Isla y Rossell
guilty beyond reasonable doubt of the crime of Frustrated Homicide, the Court
hereby sentences him to suffer the indeterminate penalty of imprisonment
ranging from four (4) years prision correccional, as minimum, to eight (8) years
and one (1) day of prision mayor, as maximum; to pay AAA the sum of P8,000.00
as temperate damages; and to pay the cost of suit.

SO ORDERED.

G.R. No. 224886--qualifying circumstance of treachery---defense of insanity

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
ROGER RACAL @ RAMBO, Accused-Appellant

DECISION

PERALTA, J.:
Before the Court is an ordinary appeal filed by accused-appellant, Roger Racal
@ Rambo (Racal), assailing the Decision1 of the Court of Appeals (CA), dated
February 27, 2015, in CA-G.R. CR-H.C. No. 01450, which affirmed, with
modification, the Decision2 of the Regional Trial Court (RTC) of Cebu City,
Branch 18, in Criminal Case No. CBU-77654, finding herein appellant guilty of
the crime of murder and imposing upon him the penalty of reclusion perpetua.

The antecedents are as follows:

In an Information filed by the Cebu City Prosecutor's Office on August 15, 2006,
Racal was charged with the crime of murder as defined and penalized under
Article 248 of the Revised Penal Code (RPC), as amended. The accusatory
portion of the Information reads, thus:

That on or about the 19th day of April 2006, at about 4:20 A.M., more or less, in
the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
the said accused, armed with a knife, with deliberate intent, with treachery and
evident premeditation, and with intent to kill, did then and there, suddenly and
unexpectedly, attack, assault, and use personal violence upon the person of one
Jose "Joe" Francisco by stabbing the latter, at his body, thereby inflicting a fatal
wound and as a consequence of which he died.

CONTRARY TO LAW.3

Upon arraignment, Racal entered a plea of not guilty.4 Subsequently, trial on the
merits ensued.

The evidence for the prosecution established that around 4 o'clock in the morning
of April 19, 2006, "trisikad" drivers were lining up to pick passengers along Lopez
St. at Sitio Alseca in Cebu City. Among the "trisikad" drivers was Jose Francisco
(Francisco). Also present at that place during that time was Racal, who was then
standing near Francisco. While the "trisikad" drivers were waiting for passengers,
Racal spoke in a loud voice, telling the group of drivers not to trust Francisco
because he is a traitor. Francisco, who was then holding a plastic container in
one hand and a bread in another, and was eating, retorted and asked Racal why
the latter called him a traitor. Without warning, Racal approached Francisco and
stabbed him several times with a knife, hitting him in the chest and other parts of
his body. Francisco, then, fell to the pavement. Immediately thereafter, Racal
stepped backwards and upon reaching a dark portion of the street, he hailed a
"trisikad" and sped away. Thereafter, one of the "trisikad" drivers called the
barangay tanod, but by the time they arrived, Francisco was already dead.
Racal, on his part, did not deny having stabbed Francisco. However, he raised
the defense of insanity. He presented expert witnesses who contended that he
has a predisposition to snap into an episode where he loses his reason and
thereby acts compulsively, involuntarily and outside his conscious control. Under
this state, the defense argued that Racal could not distinguish right from wrong
and, thus was not capable of forming a mental intent at the time that he stabbed
Francisco.

After Trial, the RTC rendered judgment convicting Racal as charged. The
dispositive portion of the RTC Decision, dated September 14, 2011, read as
follows:

WHEREFORE, on the following considerations, the court renders judgment

finding accused ROGER RACAL @ RAMBO guilty beyond reasonable doubt of
Murder and sentences him to the penalty of reclusion perpetua with all its
accessory penalties. He is likewise directed to pay the heirs of the late Jose
"Joe" Francisco the amount of Thirty Thousand Pesos (P30,000.00) as actual
damages, Seventy-Five Thousand Pesos (P75,000.00) as civil indemnity, and
Fifty Thousand Pesos (PS0,000.00) as moral damages.

SO ORDERED.5

The RTC ruled that the evidence for the defense is insufficient to convince the
court that Racal was indeed deprived of his mind and reason at the time when he
committed the crime as to exempt him from criminal liability becaµse his
depression and psychotic features are not the kind of insanity contemplated by
law. The trial court found the circumstance of treachery to be present, but ruled
out the presence of the aggravating circumstance of evident premeditation.

Racal filed a Motion for Reconsideration6 contending that the trial court failed to
appreciate the mitigating circumstances of sufficient provocation on the part of
the offended party and voluntary confession of guilt on the part of Racal.
However, the RTC denied the Motion for

Reconsideration in its Order7 dated December 15, 2011. Aggrieved by the ruling
of the RTC, Racal appealed to the CA. In his Appellant's Brief, Racal reiterated
his defense of insanity contending that, at the time he stabbed the victim, he
snapped into a fatal episode of temporary loss of rational judgment and that such
a predisposition to "snap" was testified upon by his expert witnesses.
In its assailed Decision, the CA affirmed the conviction of Racal but modified the
judgment of the RTC by imposing interest on the damages awarded. The CA
disposed, thus:

WHEREFORE, the September 14, 2011 Judgment in Criminal Case No. CBU-
77654, convicting accused-appellant Roger Racal @ Rambo of Murder and
sentencing him with reclusion perpetua and its accessory penalties is AFFIRMED
with MODIFICATION. Accusedappellant is also ORDERED to pay the heirs of
Jose "Joe" Francisco, interest on damages awarded, the amount of 6% from the
date of finality of the judgment until fully paid, and to pay costs.

SO ORDERED. 8

The CA held that the prosecution proved all the elements of the crime necessary
to convict Racal for the murder of Francisco. The CA gave credence to the
testimonies of the prosecution witnesses. It also affirmed the presence of the
qualifying circumstance of treachery and affirmed the trial court in ruling out the
presence of the aggravating circumstance of evident premeditation. As to Racal's
defense of insanity, the CA held that he failed to rebut the presumption the he
was sane at the time of his commission of the crime. The CA, nonetheless,
appreciated the mitigating circumstance which is analogous to an illness of the
offender that would diminish the exercise of his will-power.

Racal filed a Motion for Reconsideration,9 questioning the penalty imposed upon
him, but the CA denied it in its Resolution 10 of October 22, 2015.

Thus, on November 23, 2015, Racal, through counsel, filed a Notice of Appeal 11
manifesting his intention to appeal the CA Decision to this Court.

In its Resolution 12 dated March 16, 2016, the CA gave due course to Racal's
Notice of Appeal and directed its Archives Section to transmit the records of the
case to this Court.

Hence, this appeal was instituted.

In a Resolution13 dated July 20, 2016, this Court, among others, notified the
parties that they may file their respective supplemental briefs, if they so desire.

In its Manifestation and Motion, 14 filed on September 23, 2016, the Office of the
Solicitor General (OSG) manifested that it will no longer file a supplemental brief
because it had already adequately addressed in its brief filed before the CA all
the issues and arguments raised by accused-appellant in his brief.

On the other hand, Racal filed a Supplemental Brief15 dated October 21, 2016,
reiterating his defense of insanity by contending that at the time of the
commission of the crime, expert evidence demonstrates that he had, within him,
predisposing factors that cause insanity. He also argues that the lower courts
failed to appreciate the mitigating circumstances of sufficient provocation on the
part of the victim and voluntary confession of guilt on his part.

The basic issue for the Court's resolution in the present appeal is whether or not
the CA correctly upheld the conviction of herein appellant, Racal, for murder.

The Court rules in the affirmative.

At the outset, it bears to reiterate that in the review of a case, the Court is guided
by the long-standing principle that factual findings of the trial court, especially
when affirmed by the CA, deserve great weight and respect.16 These factual
findings should not be disturbed on appeal, unless there are facts of weight and
substance that were overlooked or misinterpreted and that would materially affect
the disposition of the case.17

In the present case, after a careful rading of the records and pleadings, this Court
finds no cogent reason to deviate from the RTC’s factual findings. There is no
indication that the trial court, overlooked, misunderstood or misapplied the
surrounding facts and circumstances of the case. Moreover, the factual findings
of the RTC are affirmed by the CA. Hence, the Court defers to the trial court in
this respect, especially considering that it was in the best position to assess and
determine the credibility of the witnesses presented by both parties.

In any case, the Court will proceed to resolve the present appeal on points of law.

The Information in the instant case charged appellant with the crime of murder,
for stabbing the victim, Francisco, which offense was alleged to have been
attended by treachery and evident premeditation.

Murder is defined and punished by Article 248 of the RPC, as amended by

Republic Act No. 7659, to wit:

Article 248. Murder. - Any person who, not falling within the provisions of Article
246, shall kill another, shall be guilty of murder and shall be punished by
reclusion perpetua, to death if committed with any of the following attendant
circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed
men, or employing means to weaken the defense or of means or persons to
insure or afford impunity;

xxx

2. With evident premeditation;

xxx

To successfully prosecute the crime of murder, the following elements must be

established: (1) that a person was killed; (2) that the accused killed him or her;
(3) that the killing was attended by any of the qualifying circumstances mentioned
in Article 248 of the RPC; and (4) that the killing is not parricide or infanticide.18

In the present case, the prosecution was able to clearly establish that (1)
Francisco was stabbed and killed; (2) appellant stabbed and killed him; (3)
Francisco's killing was attended by the qualifying circumstance of treachery as
testified to by prosecution eyewitnesses; and, (4) the killing of Francisco was
neither parricide nor infanticide.

Paragraph 16, Article 14 of the RPC defines treachery as the direct employment
of means, methods, or forms in the execution of the crime against persons which
tend directly and specially to insure its execution, without risk to the offender
arising from the defense which the offended party might make. The essence of
treachery is that the attack is deliberate and without warning, done in a swift and
unexpected way, affording the hapless, unarmed and unsuspecting victim no
chance to resist or escape. 19 In order for treachery to be properly appreciated,
two elements must be present: (1) at the time of the attack, the victim was not in
a position to defend himself; and (2) the accused consciously and deliberately
adopted the particular means, methods, or forms of attack employed by him.20
These elements are extant in the facts of this case and as testified to by the
prosecution witnesses. To emphasize, the victim, Francisco, was caught off
guard when appellant attacked him. As testified to by a prosecution witness,
Francisco was then holding a plastic container containing bread and was eating.
The stealth, swiftness and methodical manner by which the attack was carried
out gave the victim no chance at all to evade when appellant thrust the knife to
his torso. Thus, there is no denying that appellant's sudden and unexpected
onslaught upon the victim, and the fact that the former did not sustain any injury,
evidences treachery. Also, the fact that appellant was facing Francisco when he
stabbed the latter is of no consequence. Even a frontal attack could be
treacherous when unexpected and on an unarmed victim who would be in no
position to repel the attack or avoid it,21 as in this case. Undoubtedly, the RTC
and the CA correctly held that the crime committed was murder under Article 248
of the RPC by reason of the qualifying circumstance of treachery.

Appellant, nonetheless, insists on his defense of insanity. In this regard, the

Court's pronouncement in the case of People v. Estrada22 is instructive, to wit:

The basic principle in our criminal law is that a person is criminally liable for a
felony committed by him. Under the classical theory on which our penal code is
mainly based, the basis of criminal liability is human free will. Man is essentially a
moral creature with an absolutely free will to choose between good and evil.
When he commits a felonious or criminal act (delito doloso), the act is presumed
to have been done voluntarily, i.e., with freedom, intelligence and intent. Man,
therefore, should be adjudged or held accountable for wrongful acts so long as
free will appears unimpaired.

In the absence of evidence to the contrary, the law presumes that every person is
of sound mind and that all acts are voluntary. The moral and legal presumption
under our law is that freedom and intelligence constitute the normal condition of a
person. This presumption, however, may be overthrown by other factors; and one
of these is insanity which exempts the actor from criminal liability.

The Revised Penal Code in Article 12 (1) provides:

ART. 12. Circumstances which exempt from criminal liability. The following are
exempt frorri criminal liability:

1. An imbecile or an insane person, unless the latter has acted during a lucid
interval.

When the imbecile or an insane person has committed an act which the law
defines as a felony (delito), the court shall order his confinement in one of the
hospitals or asylums established for persons thus afflicted, which he shall not be
permitted to leave without first obtaining the permission of the same court.

An insane person is exempt from criminal liability unless he has acted during a
lucid interval. If the court therefore finds the accused insane when the alleged
crime was committed, he shall be acquitted but the court shall order his
confinement in a hospital or asylum for treatment until he may be released
without danger. An acquittal of the accused does not result in his outright release,
but rather in a verdict which is followed by commitment of the accused to a
mental institution.

In the eyes of the law, insanity exists when there is a complete deprivation of
intelligence in committing the act. Mere abnormality of the mental faculties will
not exclude imputability. The accused must be "so insane as to be incapable of
entertaining a criminal intent." He must be deprived of reason and act without the
least discernment because there is a complete absence of the power to discern
or a total deprivation of freedor~/ of the will.

Since the presumption is always in favor of sanity, he who invokes insanity as an

exempting circumstance must prove it by clear and positive evidence. And the
evidence on this point must refer to the time preceding the act under prosecution
or to the very moment of its execution.

To ascertain a persons mental condition at the time of the act, it is permissible to

receive evidence of the condition of his mind within a reasonable period both
before and after that time. Direct testimony is not required. Neither are specific
acts of derangement essential to establish insanity as a defense. Circumstantial
evidence, if clear and convincing, suffices; for the unfathomable mind can only be
known by overt acts. A person's thoughts, motives, and emotions may be
evaluated only by outward acts to determine whether these conform to the
practice of people of sound mind.23

In the present case, the defense failed to overcome the presumption of sanity.
The testimonies of Dr. Preciliana Lee Gilboy (Dr. Gilboy) and Dr. Andres Suan
Gerong (Dr. Gerong), as the defense's qualified expert witnesses, failed to
support appellant's claim of insanity. As correctly observed by the CA, the
separate psychiatric evaluations of appellant were taken in June 2009 and July
2010, which are three and four years after the crime was committed on April 19,
2006. In People v. So,24 which is a case of recent vintage, this Court ruled that
an inquiry into the mental state of an accused should relate to the period
immediately before or at the very moment the felony is committed.25 Hence, the
results of the psychiatric tests done on appellant and testified to by the defense
witnesses, may not be relied upon to prove appellant's mental condition at the
time of his commission of the crime.

In any case, during cross-examination, Dr. Gilboy testified that for a number of
years up to the time that appellant killed Francisco, he had custody of and served
as the guardian of his sister's children.26 He took care of their welfare and safety,
and he was the one who sends them to and brings them home from school.
Certainly, these acts are not manifestations of an insane mind. On his part, Dr.
Gerong testified, on direct examination, that he found appellant to have "diminish[
ed] capacity to discern what was wrong or right at the time of the commission of
the crime."27 "Diminished capacity" is not the same as "complete deprivation of
intelligence or discernment." Mere abnormality of mental faculties does not
exclude imputability. 28 Thus, on the basis of these examinations, it is clearly
evident that the defense failed to prove that appellant acted without the least
discernment or that he was suffering from a complete absence of intelligence or
the power to discern at the time of the commission of the crime.

Furthermore, appellant's act of treachery, that is by employing means and

methods to ensure the killing of Francisco without risk to himself arising from the
defense which the victim might make, as well as his subsequent reaction of
immediately fleeing after his commission of the crime and, thereafter, evading
arrest, is not the product of a completely aberrant mind. In other words, evidence
points to the fact that appellant was not suffering from insanity immediately
before, simultaneous to, and even right after the commission of the crime.

In his Supplemental Brief, appellant cites the "Durham Rule" which was used in
criminal courts in the United States of America. This rule postulated that an
accused is not criminally responsible if his unlawful act was the result of a mental
disease or defect at the time of the incident.29 However, in subsequent rulings,
US Federal Courts and State Courts, even by the court which originally adopted
it, rejected and abandoned this rule for being too broad and for lacking a clear
legal standard for criminal responsibility. 30 As earlier discussed, in the
Philippines, the courts have established a clearer and more stringent criterion for
insanity to be exempting as it is required that there must be a complete
deprivation of intelligence in committing the act, i.e., the accused is deprived of
reason; he acted without the least discernment because there is a complete
absence of the power to discern, or that there is a total deprivation of the will.31
Thus, appellant's reliance on the Durham Rule is misplaced and, thus, may not
be given credit.

Having been shown beyond doubt that the prosecution was able to prove with
certainty all the elements of the crime charged, the Court will now proceed to
determine the correctness of the penalty and the civil liabilities imposed upon
appellant.

As to the penalty, the crime of murder qualified by treachery is penalized under

Article 248 of the RPC, as amended by Republic Act No. 7659, with reclusion
perpetua to death. As to the alleged aggravating circumstance of evident
premeditation, this Court has ruled that for it to be considered as an aggravating
circumstance, the prosecution must prove (a) the time when the offender
determined to commit the crime, (b) an act manifestly indicating that the culprit
has clung to his determination, and (c) a sufficient lapse of time between the
detennination and execution, to allow him to reflect upon the consequences of
his act and to allow his conscience to overcome the resolution of his will.32 In the
instant case, no proof has been adduced to establish that appellant had
previously planned the killing of Francisco. There is no evidence when and how
he planned and prepared for the same, nor was there a showing that sufficient
time had lapsed between his determination and execution. In this respect, the
Court quotes with approval the disquisition of the CA, to wit:

The circumstances that transpired immediately before and after the stabbing
negate evident premeditation. The time when accused-appellant conceived the
crime cannot be determined. Even assuming that there was an altercation that
arose between the accused-appellant and the victim due to the remarks made by
the former to the latter, this is not the overt act indicative of his criminal intent.
Simply put, the prosecution failed to establish that there was a sufficient lapse of
time for accused-appellant to reflect on his decision to kill the victim and the
actual execution thereof. 33

Thus, the RTC and the CA are correct in not considering the aggravating
circumstance of evident premeditation.

The Court likewise agrees with the RTC and the CA in not appreciating the
mitigating circumstances of sufficient provocation on the part of the offended
party and voluntary plea of guilt on the part of appellant.

With respect to the alleged mitigating circumstance of sufficient provocation on

the part of Francisco, the rule is that, as a mitigating circumstance, sufficient
provocation is any unjust or improper conduct or act of the victim adequate
enough to ~xcite a person to commit a wrong, which is accordingly proportionate
in gravity.34 In the present case, appellant asserts that several days before he
stabbed the victim, the latter teased appellant to be "gay" and taunted him that
the girl whom appellant courted rejected him. However, the Court finds no cogent
reason to depart from the ruling of the RTC on this matter, to wit:

For sufficient provocation under Article 13, paragraph 4 of the Revised Penal
Code of the Philippines to apply, three requisites must be present:
a) provocation must be sufficient;

b) it must be immediate to the commission of the crime; and

c) it must originate from the offended party.

"Sufficient" according to jurisprudence means adequate to excite a person to

commit the crime and must accordingly be proportionate to its gravity. In Bautista
v. Court of Appeals [G.R. No. L-46025, September 2, 1992], the mitigating
circumstance did not apply since it is not enough that the provocating act be
unreasonable or annoying. Certainly, calling a person gay as in this case is not
the sufficient provocation contemplated by law that would lessen the liability of
the accused.

"Immediate" on the other hand means that there is no interval of time between
the provocation and the commission of the crime. Hence, in one case [People v.
Co, 67 O.G. 7451] the Supreme Court ruled that provocation occurring more than
one hour before the stabbing incident is not immediate and in People v. Benito
[62 SCRA 351] 24 hours before the commission of the crime. Per admission of
the defense witnesses, the taunting done by the victim occurred days before the
stabbing incident hence the immediacy required by law was absent. The lapse of
time would have given the accused [chance] to contemplate and to recover his
serenity enough to refrain from pushing through with his evil plan. 35

Anent the supposed voluntary plea of guilt on appellant's part, it is settled that a
plea of guilty made after arraignment and after trial had begun does not entitle
the accused to have such plea considered as a mitigating circumstance.36
Again, the Court quotes with approval the RTC's disquisition, thus:

The second mitigating circumstance of voluntary plea of guilt. claimed by the

accused could likewise not be considered.1âwphi1 The voluntary plea of guilt
entered by the accused is not spontaneous because it was made after his
arraignment and only to support his claim of the exempting circumstance of
insanity. The voluntary plea of guilt required by law is one that is made by the
accused in cognizance of the grievous wrong he has committed and must be
done as an act of repentance and respect for the law. It is mitigating because it
indicated a moral disposition in the accused favorable to his reform. It may be
recalled that accused in the case at bar did not change his plea from "not guilty"
to "guilty". In a last ditch effort to elude liability, however, accused claimed the
defense of admitting the act of [stabbing].37
The Court, however, agrees with the CA in appreciating the mitigating
circumstance of illness as would diminish the exercise of willpower of appellant
without, however, depriving him of the consciousness of his acts, pursuant to
Article 13, paragraphs 9 and 10 of the RPC, as he was found by his examining
doctors to have "diminish[ ed] capacity to discern what was wrong or right at the
time of the commission of the crime."38 Thus, on the basis of the foregoing,
appellant was correctly meted the penalty of reclusion perpetua, conformably
with Article 63, paragraph 3 of the RPC.

With respect to appellant's civil liability, the prevailing rule is that when the
circumstances surrounding the crime call for the imposition of reclusion perpetua
only, there being no ordinary aggravating circumstance, as in this case, the
proper amounts should be ₱75,000.00 as civil indemnity, ₱75,000.00 as moral
damages and ₱75,000.00 as exemplary damages, regardless of the number of
qualifying aggravating circumstances present.39 In conformity with the foregoing
rule, the awards granted by the lower courts must, therefore, be modified. Thus,
the award of moral damages should be increased from ₱50,000.00 to
P75,000.00. Appellant should also pay the victim's heirs exemplary damages in
the amount of P75,000.00. The award of ₱75,000.00, as civil indemnity, is
sustained.

As regards the trial court's award of actual damages in the amount of

P30,000.00, the same must, likewise, be modified. The settled rule is that when
actual damages proven by receipts during the trial amount to less than the sum
allowed by the Court as temperate damages, 40 the award of temperate
damages is justified in lieu of actual damages which is of a lesser amount.41
Conversely, ifthe amount of actual damages proven exceeds, then temperate
damages may no longer be awarded; actual damages based on the receipts
presented during trial should instead be granted.42 The rationale for this rule is
that it would be anomalous and unfair for the victim's heirs, who tried and
succeeded in presenting receipts and other evidence to prove actual damages,
to receive an amount which is less than that given as temperate damages to
those who are not able to present any evidence at all.43 In the present case,
Francisco's heirs were able to prove, and were awarded, actual damages in the
amount of ₱30,000.00. Since, prevailing jurisprudence now fixes the amount of
₱50,000.00 as temperate damages in murder cases, the Court finds it proper to
award temperate damages to Francisco's heirs, in lieu of actual damages.

The imposition of six percent (6%) interest per annum on all damages awarded
from the time of finality of this decision until fully paid, as well as the payment of
costs, is likewise sustained.

WHEREFORE, the Court AFFIRMS the Decision of the Court of Appeals, dated
February 27, 2015, in CA-G.R. CR-HC No. 01450, finding accused-appellant
Roger Racal @ Rambo GUILTY beyond reasonable doubt of the crime of
Murder, with the following MODIFICATIONS:

(1) The award of moral damages is INCREASED to Seventy-Five Thousand

Pesos (₱75,000.00);

(2) Accused-appellant is DIRECTED TO PAY the heirs of the victim Jose "Joe"
Francisco exemplary damages in the amount of Seventy-Five Thousand Pesos
(₱75,000.00); and (3) The award of actual damages is DELETED and, in lieu
thereof, temperate damages in the amount of Fifty Thousand Pesos
(₱50,000.00) is awarded to the heirs of the victim.

SO ORDERED.