People of the Philippines vs. Guillermo Nepomuceno, Jr.

R.A. No. 8294, which provides that the use of an unlicensed firearm in homicide or murder is only an aggravating circumstance and no longer a separate offense, is a favorable penal amendment that must be given retroactive effect under Article 22 of the Revised Penal Code to an accused who is not a habitual criminal. Absent specific reimposition by R.A. No. 7659, the death penalty in P.D. No. 1866 remained suspended under Section 19(1), Article III of the 1987 Constitution.

Guillermo Nepomuceno, Jr. was married to Grace B. Nepomuceno, the victim in the parricide charge. The prosecution for qualified illegal possession of firearm arose under P.D. No. 1866, which originally punished illegal possession and, when homicide or murder was committed with an unlicensed firearm, authorized the death penalty. R.A. No. 8294 later amended the law to treat such use only as an aggravating circumstance in the homicide or murder case, while R.A. No. 7659 had earlier imposed the death penalty on certain heinous crimes.

Guillermo Nepomuceno, Jr. was charged before the Regional Trial Court of Manila in Criminal Case No. 94-136491 for parricide and in Criminal Case No. 94-139839 for qualified illegal possession of firearm. The parricide charge alleged that he killed his legal wife, Grace B. Nepomuceno, with the use of an unlicensed firearm. The two cases were consolidated and assigned to Branch 46, and Nepomuceno entered a plea of not guilty in each.

Despite the consolidation, Criminal Case No. 94-136491 was tried first. On 20 November 1996, the trial court rendered judgment finding Nepomuceno guilty beyond reasonable doubt of parricide and sentencing him to suffer a prison term of forty years of reclusion perpetua. Nepomuceno appealed to the Supreme Court in G.R. No. 127818. In its decision of 11 November 1998, the Supreme Court affirmed the appealed judgment with the modification that the penalty imposed was changed from “forty years of reclusion perpetua” to reclusion perpetua.

Meanwhile, the trial court proceeded with the trial of Criminal Case No. 94-139839. The information alleged that on or about May 2, 1994, in the City of Manila, Nepomuceno, a private individual not authorized by law to possess firearm and ammunition, willfully and unlawfully kept, carried in his possession and under his custody and control one cal. .38 revolver and one piece of ammunition, without first obtaining the necessary permit or license, and used the firearm in committing parricide against his legal wife, Grace B. Nepomuceno. On 24 September 1997, judgment was promulgated holding that all the elements of aggravated illegal possession of firearm were present: (1) there must be a firearm; (2) the gun was possessed by the accused; (3) the accused had no license from the government; and (4) homicide or murder was committed by the accused with the use of said firearm.

The trial court applied People vs. Quijada, which held that killing a person with the use of an illegally possessed firearm gives rise to two separate offenses: homicide or murder under the Revised Penal Code and illegal possession of firearm in its aggravated form. It convicted Nepomuceno of violating Section 1, paragraph 2, P.D. No. 1866, as amended by R.A. No. 8294, and sentenced him to death by lethal injection. The trial court noted that Nepomuceno showed remorse by immediately bringing his wife to a hospital and voluntarily surrendering to the authorities, but Article 10 of the Revised Penal Code prohibited the application of mitigating and aggravating circumstances in the imposition of the penalty for a special law. It nevertheless recommended executive clemency, reducing the penalty to prision correccional in its maximum period and a fine of P15,000.00, the penalty for illegal possession of firearms with only .380 firepower in non-aggravated form.

• Evidence by Inference and Animus Possidendi: In the first Appellant’s Brief, Nepomuceno asked for reversal because the trial court erred in convicting him on the basis of “evidence by inference” and in ruling that circumstantial evidence showed that the accused had animus possidendi of the unrecovered firearm.
• Retroactive Application of R.A. No. 8249: In the second Appellant’s Brief, Nepomuceno asserted that the Court must allow the benefit of R.A. No. 8249 to take retroactive effect as to acquit him of qualified illegal possession of firearm.
• Failure to Prove Lack of License: In the alternative, he asked for acquittal because the trial court erred in finding that the prosecution proved an essential requisite of the offense, i.e., that the accused possessed the firearm without the requisite license or permit.

• Failure to Prove Lack of Authority or License: The Office of the Solicitor General, in its Manifestation in Lieu of Appellees’ Brief, asked for reversal of the challenged decision and for acquittal on the ground that the prosecution failed to prove that Nepomuceno had no authority or license to possess the firearm.
• Retroactive Effect of R.A. No. 8294: The OSG argued that pursuant to People vs. Bergante, which gave retroactive effect to R.A. No. 8294, if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as an aggravating circumstance and shall no longer be separately punished.

• Retroactive Application of R.A. No. 8294: Whether R.A. No. 8294, which provides that the use of an unlicensed firearm in homicide or murder is only an aggravating circumstance, should be given retroactive effect to acquit the accused of qualified illegal possession of firearm.
• Separate Punishment for Illegal Possession: Whether the accused may be separately convicted and punished for qualified illegal possession of firearm when he was already convicted of parricide committed with the use of an unlicensed firearm.
• Imposition of Death Penalty: Whether the death penalty may be imposed for aggravated illegal possession of firearm under P.D. No. 1866 in light of R.A. No. 7659 and the Constitution.

• Retroactive Application of R.A. No. 8294: Yes. R.A. No. 8294 is favorable to Nepomuceno, who is not a habitual criminal, and must be given retroactive effect under Article 22 of the Revised Penal Code.
• Separate Punishment for Illegal Possession: No. Under Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, the use of an unlicensed firearm in homicide or murder is only an aggravating circumstance; only the homicide or murder is punished, not illegal possession separately.
• Imposition of Death Penalty: No. Nothing in R.A. No. 7659 specifically reimposed the death penalty in P.D. No. 1866; it remained suspended under Section 19(1), Article III of the Constitution, so only reclusion perpetua could be imposed.

• Retroactive Application of R.A. No. 8294: The information alleged the illegal possession on May 2, 1994, before R.A. No. 8294 was approved on June 6, 1997. Section 1 of R.A. No. 8294 amended the second paragraph of Section 1 of P.D. No. 1866, changing the rule that “[i]f homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed” to the rule that such use “shall be considered as an aggravating circumstance.” Under the old provision, Quijada allowed prosecution and conviction for both illegal possession in aggravated form and homicide or murder. Under the amendment, however, the illegal possession or use of the unlicensed firearm is no longer separately punished. Bergante held that only one offense should be punished, either homicide or murder, with the use of the unlicensed firearm as an aggravating circumstance, and that the amendment may be given retroactive effect under Article 22 of the Revised Penal Code because it is favorable to the accused who is not a habitual criminal. Nepomuceno is not a habitual criminal, and he was already convicted of parricide in G.R. No. 127818, affirmed on November 11, 1998. The amendment is therefore favorable to him and must be applied retroactively, requiring his acquittal in the illegal possession case.
• Separate Punishment for Illegal Possession: The same amendment bars separate punishment. The Court emphasized that the use of an unlicensed firearm in the commission of murder or homicide is treated as an aggravating circumstance, so the illegal possession or use of the unlicensed firearm is no longer separately punished. Only one offense should be punished, either homicide or murder. Since Nepomuceno was already convicted of parricide, he could not also be convicted of qualified illegal possession of firearm.
• Imposition of Death Penalty: Assuming Nepomuceno could be separately punished, the death penalty would still have no legal basis. Under Quijada, the old second paragraph of Section 1 of P.D. No. 1866 increased the penalty for illegal possession from reclusion temporal in its maximum period to reclusion perpetua to the single indivisible penalty of death. Although R.A. No. 7659 had already taken effect at the time of the alleged violation, nothing in R.A. No. 7659 specifically reimposed the death penalty in P.D. No. 1866. Without such reimposition, the death penalty in Section 1 of P.D. No. 1866 for aggravated illegal possession of firearm remained suspended pursuant to Section 19(1), Article III of the 1987 Constitution. The trial court could therefore impose only reclusion perpetua.

• Retroactive Effect of Favorable Penal Laws — Article 22 of the Revised Penal Code provides that penal laws shall have retroactive effect insofar as they favor the accused who is not a habitual criminal. The Court applied this rule to R.A. No. 8294 because it reduced the consequences of using an unlicensed firearm in homicide or murder from a separate offense to an aggravating circumstance, and Nepomuceno was not a habitual criminal.
• Use of Unlicensed Firearm in Homicide or Murder as Aggravating Circumstance Only — Under Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, if homicide or murder is committed with the use of an unlicensed firearm, such use is considered only an aggravating circumstance. The illegal possession or use of the unlicensed firearm is no longer separately punished; only one offense, either homicide or murder, should be punished.
• Suspension of the Death Penalty Absent Specific Reimposition — Section 19(1), Article III of the 1987 Constitution suspends the death penalty unless Congress provides for it. Even if R.A. No. 7659 had taken effect, the death penalty in Section 1 of P.D. No. 1866 for aggravated illegal possession of firearm remained suspended because R.A. No. 7659 did not specifically reimpose it. The imposable penalty was thus reclusion perpetua.

• "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." — This is the amended second paragraph of Section 1 of P.D. No. 1866 as quoted by the Court; it supplies the controlling rule that eliminated separate punishment for illegal possession.
• "In short, only one offense should be punished, viz., either homicide or murder, and the use of the unlicensed firearm should only be considered as an aggravating circumstance. Being favorable to Rex Bergante, this provision may be given retroactive effect pursuant to Article 22 of the Revised Penal Code, he not being a habitual criminal." — Quoted from People vs. Bergante and adopted by the Court; it states the retroactivity rationale applied to Nepomuceno.
• "Being clearly favorable to NEPOMUCENO, who is not a habitual criminal, the amendment to the second paragraph of Section 1 of P.D. No. 1866 by R.A.. No. 8294 should be given retroactive effect in this case." — This is the Court’s direct application of Article 22 of the Revised Penal Code to Nepomuceno.
• "Without such reimposition, the death penalty imposed in Section 1 of P.D. No. 1866 for aggravated illegal possession of firearm shall remain suspended pursuant to Section 19 (1) of Article III of the Constitution." — This alternative holding explains why the death penalty could not stand even if separate punishment were allowed.

• People vs. Quijada, 259 SCRA 191 [1996] — The Court cited this as the prior ruling that the old second paragraph of Section 1 of P.D. No. 1866 preserved homicide or murder as a distinct offense and increased the penalty for illegal possession when an unlicensed firearm was used in killing. The trial court relied on it, but the Supreme Court found that the subsequent R.A. No. 8294 amendment changed the rule.
• People vs. Bergante, 286 SCRA 629 [1998] — The Court relied on this precedent for the rule that R.A. No. 8294 should be given retroactive effect and that only one offense, either homicide or murder, should be punished, with the use of the unlicensed firearm as an aggravating circumstance.
• People vs. Simon, 234 SCRA 555, 569 [1994] — Cited in the decision’s footnote for the effectivity of R.A. No. 7659 on December 31, 1993.

• Article 22, Revised Penal Code — Provides for the retroactive effect of penal laws favorable to the accused who is not a habitual criminal. The Court applied it to R.A. No. 8294.
• Section 1, paragraph 2, P.D. No. 1866, as amended by R.A. No. 8294 — States that if homicide or murder is committed with the use of an unlicensed firearm, such use is considered an aggravating circumstance. The Court held this barred separate punishment for illegal possession.
• Section 1, paragraph 2, P.D. No. 1866 (old provision) — Previously imposed the penalty of death if homicide or murder was committed with the use of an unlicensed firearm. The Court noted this was amended by R.A. No. 8294.
• Article 47, Revised Penal Code, as amended by Section 22, R.A. No. 7659 — Governs automatic review of death penalty cases. The judgment and record in the illegal possession case were forwarded to the Supreme Court under this provision.
• Section 19(1), Article III, 1987 Constitution — Suspends the death penalty unless Congress provides for it. The Court held the death penalty in P.D. No. 1866 remained suspended absent specific reimposition by R.A. No. 7659.
• Article 10, Revised Penal Code — Prohibits the application of mitigating and aggravating circumstances in the imposition of penalties for special laws. The trial court cited it in declining to appreciate Nepomuceno’s remorse and surrender.
• R.A. No. 8294 — Amended P.D. No. 1866 and was approved on June 6, 1997. The Court gave it retroactive effect.
• R.A. No. 7659 — Imposed the death penalty on certain heinous crimes and took effect on December 31, 1993. The Court held it did not specifically reimpose the death penalty in P.D. No. 1866.

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Santiago, JJ., concurred. Romero, J., was abroad on official business.