Colinares vs. People

An accused who appeals a conviction carrying a non-probationable penalty may still apply for probation if the appellate court modifies the conviction to a lesser offense carrying a probationable penalty, provided the appeal was necessitated by the trial court's erroneous imposition of the higher penalty, which deprived the accused of the opportunity to choose probation in the first place.

On June 25, 2000, Rufino Buena was struck twice on the head with a large stone while waiting for a companion by the roadside, rendering him unconscious. Ananias Jallores, who attempted to assist Rufino, was also struck. Petitioner Arnel Colinares admitted to hitting both individuals but claimed he acted in self-defense after Rufino pushed him and Rufino's companions boxed him and attempted to stab him. Colinares voluntarily surrendered to the authorities on September 4, 2000.

• The Incident: On the evening of June 25, 2000, Rufino Buena and Jesus Paulite went to buy cigarettes. While Jesus urinated by the roadside, Colinares sneaked behind Rufino and struck him twice on the head with a 15 ½-inch stone, causing him to lose consciousness. When Ananias Jallores attempted to help Rufino, Colinares also struck him. Paciano Alano witnessed the event and sought barangay assistance.
• Medical Findings: Dr. Albert Belleza issued a Medico-Legal Certificate indicating two lacerated wounds on Rufino's forehead. He testified that head injuries are "always very serious" and potentially fatal, but admitted he could not categorically state the wounds were fatal. The wounds did not result in a skull fracture or internal bleeding, required only suturing and antibiotics, and were estimated to heal in seven to eight days. Rufino did not stay in the hospital for 24 hours after initial treatment.
• Defense Version: Colinares claimed that he encountered Rufino, Jesus, and Ananias, who were drunk. After Colinares asked Rufino a question, Rufino pushed him, causing him to fall. Jesus and Ananias boxed him, and Rufino attempted to stab him. Colinares picked up a stone to defend himself and struck Rufino, and subsequently Ananias, who charged at him with a gaff. Defense witness Diomedes Paulite corroborated that the three companions were drunk and engaged in a heated argument with Colinares. Colinares voluntarily surrendered on September 4, 2000.

• Self-Defense: Petitioner argued that he acted in self-defense when he struck Rufino with a stone, claiming unlawful aggression on the part of the victim and his companions.
• Downgrade of Offense: Petitioner contended that the evidence only warrants a conviction for attempted homicide, not frustrated homicide, because the wounds inflicted were not fatal.
• Entitlement to Probation: Petitioner maintained that, assuming a conviction for the lesser offense of attempted homicide with a probationable penalty, he should be entitled to apply for probation upon remand, consistent with the language and spirit of the Probation Law.

• Rejection of Self-Defense: Respondent argued that unlawful aggression was not proven, as prosecution witnesses consistently identified Colinares as the aggressor.
• Denial of Probation: Respondent countered that under Section 4 of Presidential Decree No. 968 (the Probation Law), no application for probation can be entertained or granted once the accused has perfected an appeal from the judgment of conviction.

• Self-Defense: Whether petitioner acted in self-defense when he struck the victim.
• Frustrated vs. Attempted Homicide: Whether petitioner is guilty of frustrated homicide or only attempted homicide given the nature of the victim's wounds.
• Probation: Whether petitioner may still apply for probation upon remand, despite having perfected an appeal, given that the Supreme Court modified his conviction to a lesser offense carrying a probationable penalty.

• Self-Defense: Self-defense was not established. Unlawful aggression, the indispensable element of self-defense, was not proven. Petitioner's testimony that the victim and companions attacked first was uncorroborated and contradicted by three prosecution witnesses who consistently identified petitioner as the aggressor. The absence of medical evidence substantiating petitioner's claimed injuries further undermined his claim.
• Frustrated vs. Attempted Homicide: Petitioner is guilty only of attempted homicide. Frustrated homicide requires that the victim's wounds be fatal and that death was averted solely due to timely medical intervention. The prosecution's own medical witness could not categorically confirm that the wounds were fatal, and the medical certificate indicated only the length, not the depth, of the lacerations. The wounds required only suturing, were projected to heal in seven to eight days, and did not result in a skull fracture or internal bleeding. Intent to kill was, however, established by the use of a huge stone aimed at the head.
• Probation: Petitioner may apply for probation upon remand. The rule in Francisco v. Court of Appeals—that appeal and probation are mutually exclusive remedies—was distinguished. In Francisco, the accused had a probationable penalty but appealed seeking an acquittal, thereby waiving probation. Here, the trial court erroneously imposed a non-probationable penalty, depriving petitioner of the choice to apply for probation. Disallowing probation would punish petitioner for the trial court's error. The Supreme Court's modification of the conviction to a probationable penalty operates as an original conviction that, for the first time, affords the right to apply for probation.

• Unlawful Aggression in Self-Defense — Unlawful aggression is the primary and indispensable element of self-defense. It contemplates an actual, sudden, and unexpected attack or an imminent danger thereof, not merely a threatening or intimidating attitude. Without unlawful aggression, the other elements of self-defense have no basis.
• Frustrated vs. Attempted Homicide — In frustrated homicide, the wounds inflicted must be fatal and would have caused death were it not for timely medical assistance. If the wounds are not fatal, the crime is only attempted homicide, regardless of the accused's intent to kill. The prosecution must establish the nature, extent, depth, and severity of the wounds with certainty.
• Probation as a Right to Apply — Probation is a mere privilege, but the accused possesses a right to apply for that privilege. When a trial court erroneously imposes a non-probationable penalty, and the appellate court corrects this to a probationable penalty, the accused is not barred by Section 4 of P.D. 968 from applying for probation, as the appeal was not an act of speculation but a necessary recourse to correct the penalty.

• "If the victim’s wounds are not fatal, the crime is only attempted murder or attempted homicide."
• "What he has is the right to apply for that privilege. x x x If the Court allows him to apply for probation because of the lowered penalty, it is still up to the trial judge to decide whether or not to grant him the privilege of probation, taking into account the full circumstances of his case."
• "The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying philosophy of probation is one of liberality towards the accused."

• Palaganas v. People, G.R. No. 165483, September 12, 2006 — Followed. Established the rule that when the victim's wounds are not fatal, the crime is only attempted, not frustrated, homicide or murder.
• Francisco v. Court of Appeals, 313 Phil. 241 (1995) — Distinguished. Held that appeal and probation are mutually exclusive because an accused should not use probation as an escape hatch after a failed appeal. Distinguished here because the accused in Francisco had a probationable penalty and gambled for an acquittal, whereas Colinares was deprived of the choice to apply for probation by the trial court's erroneous imposition of a non-probationable penalty.
• Yusi v. Honorable Judge Morales, 206 Phil. 734 (1983) — Followed. Cited for the proposition that the underlying philosophy of the Probation Law is one of liberality towards the accused.

• Article 249, Revised Penal Code — Applied as the base crime of homicide, which determines the penalty scales for the attempted and frustrated stages.
• Section 4, Presidential Decree No. 968 (Probation Law of 1976) — Interpreted. Provides that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." The Court ruled this does not bar an application for probation where the appeal was necessitated by the trial court's erroneous imposition of a non-probationable penalty, as the accused never had the opportunity to choose probation over appeal.

Renato C. Corona (CJ), Antonio T. Carpio, Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Arturo D. Brion, Lucas P. Bersamin, Mariano C. Del Castillo, Jose Portugal Perez, Jose Catral Mendoza, Maria Lourdes P. A. Sereno, Bienvenido L. Reyes, Estela M. Perlas-Bernabe.

• Peralta, J. — Concurred with the conviction for attempted homicide but dissented on allowing the application for probation. Probation is a privilege, and the Probation Law is not a penal statute warranting liberal construction. Section 4 of P.D. 968 expressly prohibits probation if an appeal is perfected. Proposed that an exception be created only if the accused first files a motion for reconsideration of the penalty with the trial court and manifests an intent to apply for probation if the penalty is corrected, rather than directly appealing. The remedy to the harshness of the law lies in legislative amendment, not judicial interpretation.
• Villarama, Jr., J. — Concurred with the conviction but dissented on the probation issue. Emphasized that allowing probation despite an appeal carves out an exception repugnant to the Probation Law. Probation requires remorse and a penitent disposition, which is inconsistent with appealing a conviction. The accused's appeal, even if aimed at reducing the penalty, still constitutes speculation and opportunism. Judicial legislation is impermissible; the remedy lies with the legislature.