People of the Philippines vs. Sotero Reyes

Treachery is not established where the victim was forewarned of the attack and aware of the assailant's hostility, so that the killing is only homicide; and under R.A. No. 8294, the use of an unlicensed firearm in homicide or murder is only an aggravating circumstance, not a separate offense.

Sotero Reyes alias "Turing" and Nicasio Atienza were residents of Mabini, Batangas, whose families had been at odds for several months before August 1996. The case involves the legal treatment of an unlicensed firearm used in a killing, governed at the time by P.D. No. 1866 and later amended by R.A. No. 8294, which took effect on July 6, 1997. Because the trial court imposed the death penalty for murder, the case was elevated to the Supreme Court on automatic review.

At about 5:00 p.m. on August 19, 1996, Nicasio Atienza was shot and killed at Sitio Gulod, Barangay Laurel, Mabini, Batangas. Sotero Reyes alias "Turing" was charged in two informations before the Regional Trial Court, Branch 4, Batangas City. In Criminal Case No. 8773, the information alleged that Reyes, armed with a carbine, with intent to kill, with treachery and evident premeditation, and without justifiable cause, attacked and shot Nicasio, inflicting multiple gunshot wounds that caused his death. In Criminal Case No. 8774, the information alleged that Reyes willfully and unlawfully kept and possessed one carbine firearm with four live ammunitions without the necessary license or permit, and that the firearm was used in the murder. Reyes pleaded not guilty, and the cases were consolidated.

The prosecution presented Roman Dalisay, who testified that around 5:00 p.m. on August 19, 1996, he was on his way home and passed by the house of Toribio Atienza, a barangay councilman of Barangay Ligaya in Mabini. There he met Nicasio Atienza, Toribio's brother, who decided to go with him because their houses were along the same road. They walked single file on a narrow pathway, with Roman ahead. On the way, they met Reyes coming from the opposite direction, carrying a carbine rifle. Reyes stopped them and, when he got near, ordered Roman, "Uklot, Manny, uklot!" (Drop to the ground, Manny, drop to the ground!). Roman said he could not comply because Nicasio was using him as a shield. As soon as Nicasio released Roman, Roman dropped to the ground. Roman then heard a gunshot and, several minutes later, about eight more shots in succession. When Reyes left, Roman approached Nicasio, who was already dead. Roman rushed to the house of Nicasio's brother Esteban Atienza in Barangay Laurel to report the incident; Esteban sought the help of the Barangay Captain while Roman returned to the scene but could not carry the body.

PO3 Edgardo Malibiran, radio operator and desk officer of the Mabini Police Station, testified that at about 6:25 p.m. on August 19, 1996, he received a radio message from Jose Boonggaling, a Mabini Municipal Clerk Officer, regarding a shooting incident in Barangay Ligaya; Boonggaling had received the message from Felicisimo Reyes. PO3 Malibiran, together with SPO2 Senen Beloso and PO3 Mendoza, proceeded to Barangay Ligaya. SPO2 Beloso corroborated this and said they found Nicasio's body lying face down and bloodied; nearby, the police recovered three to four empty shells of a carbine rifle. After taking pictures, the police took the body to Pilipinas Parlor in Bauan for autopsy. Dr. Luisita Ramos, Municipal Health Officer of Bauan, conducted the postmortem examination on August 20, 1996. Her report showed multiple gunshot wounds, including an entrance wound at the occipital region and exit wound at the forehead, three entrance wounds at the left scapular region with two exit wounds at the right upper quadrant of the abdomen, and gunshot wounds to the right lower leg with a broken shin bone. The cause of death was shock, internal hemorrhage, and cardiac arrest due to multiple gunshot wounds. Dr. Ramos said she could not determine the order of the wounds or the precise position of the victim in relation to the assailant, though it was possible the victim was shot from behind; her examination was limited to visual examination because the victim's mother did not allow the cadaver to be opened. SPO4 Federico Bondoc, Jr., Records Verifier of the Firearms and Explosives Division of the PNP at Camp Crame, testified that Reyes had no license to possess a firearm, as shown by a certificate issued by Police Chief Inspector Edwin Nemenzo.

Toribio Atienza testified that his family and Reyes had been at odds for several months before the incident. He offered two possible reasons: in July 1996, Francisco Atienza filed a complaint against Reyes before the Barangay Captain of Barangay Laurel for shouting in front of the Atienzas' house; and Reyes resented that the pathway built in their area did not reach his house. On cross-examination, Toribio admitted he had no personal knowledge of the shouting incident or of the complaint because he was not at home when the alleged incident occurred. Reyes was the sole witness for the defense. He admitted killing Nicasio Atienza but claimed self-defense. He testified that on August 19, 1996, as early as 7:00 a.m., he went to Sulu, another barangay in Mabini, to hunt monkeys; failing to find any, he decided to go home on his horse. On his way home, he met Roman Dalisay and Nicasio Atienza. Seeing them, he alighted from his horse to confront Nicasio about an incident involving Nicasio and his son, Edilberto Reyes. He demanded to know why Nicasio chased his son in August 1996. Nicasio did not explain; instead, he dared Reyes to do as he pleased. Reyes said he told Nicasio he did not want trouble and warned him by firing a shot on the ground. At that point, Nicasio grabbed Roman by the shoulders and used him as cover, but released Roman as he drew his bolo; Roman dove to the ground. Reyes and Nicasio were three to four meters apart. Seeing Nicasio with his bolo drawn, Reyes fired six more times, not knowing whether Nicasio had been hit. Reyes also claimed bad blood between the families: in June 1996, while on his way home, he was allegedly blocked by Nicasio and Francisco, and only the intervention of Alex, their cousin, allowed him to continue; two days later, he was summoned by the Barangay Captain of Laurel because Francisco complained that Reyes threatened to kill the Atienzas and shouted epithets in front of their house on the evening of July 12, 1996; and on August 18, 1996, Nicasio chased his son Edilberto, prompting Reyes to ask Toribio to help settle the matter, but Toribio showed no interest.

The trial court convicted Reyes of illegal possession of firearms and ammunitions and of murder, sentencing him to six years, eight months, and one day of prision mayor plus fine for the former, and death for the latter, with an order to indemnify the heirs P100,000 as moral, actual, and exemplary damages. On automatic review, Reyes did not question his conviction for illegal possession nor pray for acquittal; he sought conviction for homicide instead of murder and a reduction of penalty. The Solicitor General maintained that treachery was established but agreed that evident premeditation was not proven. The parties' factual dispute on appeal centered on whether the shooting was sudden and unexpected, with the prosecution relying on Roman Dalisay's account and the defense asserting self-defense and prior bad blood.

• Reduction to Homicide: Accused-appellant did not question his conviction for illegal possession of firearms and ammunitions and did not pray for acquittal; he sought conviction for the lesser crime of homicide rather than murder and the consequent reduction of the penalty imposed.
• Self-Defense: At trial, accused-appellant admitted killing Nicasio Atienza but claimed he acted in self-defense, testifying that he fired a warning shot and then fired after Nicasio allegedly drew a bolo and used Roman Dalisay as cover.

• Treachery: The Solicitor General maintained that treachery was adequately established by the prosecution, making the crime committed murder.
• Evident Premeditation: The Solicitor General agreed that evident premeditation cannot be appreciated against accused-appellant because it had not been proved.

• Treachery: Whether treachery qualified the killing of Nicasio Atienza to murder.
• Illegal Possession of Firearm: Whether accused-appellant may be separately convicted and punished for illegal possession of firearms and ammunitions when the unlicensed firearm was used in the killing, in light of R.A. No. 8294.
• Civil Liability: Whether the awards of civil indemnity, actual, temperate, moral, and exemplary damages are proper.

• Treachery: No. Treachery was not established; the victim was forewarned and aware of the assailant's hostility, and the attack was not sudden and unexpected. The killing is homicide, not murder.
• Illegal Possession of Firearm: No separate punishment. Under R.A. No. 8294, the use of an unlicensed firearm in homicide or murder is only an aggravating circumstance; illegal possession is no longer separately punished, and the law is retroactive if favorable to the accused.
• Civil Liability: Partly yes. Civil indemnity of P50,000 is proper; actual damages are not sustained for lack of competent proof; temperate damages of P10,000, moral damages of P50,000, exemplary damages of P25,000, and costs are awarded.

• Treachery: Article 14, paragraph 16, Revised Penal Code defines treachery as employing means, methods, or forms in execution that tend directly and specially to ensure execution without risk to the offender from the defense the offended party might make. The essence is a sudden and unexpected attack on an unsuspecting victim, depriving him of any real chance to defend himself, ensuring commission without risk and without the slightest provocation. The two conditions are that the victim was not in a position to defend himself and the offender consciously adopted the particular means, method, or form of attack. The prosecution relied on Roman Dalisay, but the long-standing grudge and bad blood between the families as early as June or July 1996, Reyes's attempt to seek Toribio's intercession, and the fact that Nicasio had been warned of the attack and tried to use Roman as a shield negated surprise. Roman testified that when he was ordered to drop, he asked Nicasio to run; had Reyes intended surprise, he would not have forewarned Roman. People vs. Rillorta held no treachery if an assault is preceded by a heated exchange of words; People vs. Rivera held no treachery if the victim was aware of the assailant's hostility. Reyes was hunting monkeys and on his way home; possession of a rifle was not sufficient proof of ambush; doubts are resolved in favor of the accused. Thus, homicide only.
• Illegal Possession of Firearm: R.A. No. 8294 amended P.D. No. 1866. The third paragraph of Section 1 provides that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered an aggravating circumstance. Only one offense should be punished, either homicide or murder; illegal possession is no longer separately punished. Although the crime was committed on August 19, 1996, and R.A. No. 8294 took effect on July 6, 1997, the law is retroactive under Article 22, Revised Penal Code, if favorable to the accused, who is not a habitual criminal. People vs. Guillermo Nepomuceno, Jr., People vs. Bergante, and People vs. Valdez were cited. In Valdez, R.A. No. 8294 was given retroactive application to spare the accused from separate conviction for illegal possession, but not as a special aggravating circumstance in complex multiple murder because it would unduly raise the penalty and acquire the character of an ex post facto law. Here, the use of the unlicensed firearm was treated as an aggravating circumstance in the homicide, supporting exemplary damages.
• Civil Liability: For the death of Nicasio, civil indemnity of P50,000 is proper. The trial court's award of actual damages cannot be sustained for lack of competent evidence; Toribio promised to submit receipts for burial and funeral expenses but failed to do so. Under People vs. Oliano, actual damages require proof of the actual amount of loss with a reasonable degree of certainty based on competent proof and the best evidence obtainable; absent such proof, temperate damages of P10,000 are awarded under Article 2224 of the Civil Code because some pecuniary loss was suffered but cannot be proved with certainty. Moral damages of P50,000 are awarded under Article 2219 in relation to Article 2206, and exemplary damages of P25,000 under Article 2230 due to the presence of an aggravating circumstance, i.e., illegal possession of firearm. Costs are also awarded.

• Treachery (alevosia) — Under Article 14, paragraph 16, Revised Penal Code, treachery exists when the offender employs means, methods, or forms in execution that tend directly and specially to ensure the crime's execution without risk to himself from the defense the offended party might make. Its essence is a sudden and unexpected attack on an unsuspecting victim, depriving the victim of any real chance to defend himself, ensuring commission without risk to the aggressor and without the slightest provocation. The two conditions are: (1) at the time of the attack, the victim was not in a position to defend himself; and (2) the offender consciously adopted the particular means, method, or form of attack. The Court found no treachery because the victim had been forewarned and was aware of the hostility, and the attack was not sudden and unexpected.
• Use of unlicensed firearm under R.A. No. 8294 — R.A. No. 8294 amended P.D. No. 1866 to provide that if homicide or murder is committed with the use of an unlicensed firearm, such use is considered an aggravating circumstance. Only one offense is punished, either homicide or murder; illegal possession is no longer separately punished. The law may be given retroactive effect under Article 22, Revised Penal Code, if favorable to the accused. The Court applied it retroactively because the crime was committed before the law took effect and the law spared accused from separate conviction.
• Actual damages and temperate damages — Actual damages require proof of the actual amount of loss with a reasonable degree of certainty, based on competent proof and the best evidence obtainable. Where some pecuniary loss has been suffered but its amount cannot be proved with certainty, temperate damages may be recovered under Article 2224 of the Civil Code. The Court denied actual damages for lack of receipts but awarded P10,000 temperate damages.
• Moral and exemplary damages — Moral damages may be awarded under Article 2219 in relation to Article 2206 of the Civil Code. Exemplary damages may be awarded under Article 2230 when an aggravating circumstance attended the commission of the crime. The Court awarded P50,000 moral damages and P25,000 exemplary damages because of the aggravating circumstance of illegal possession of firearm.
• Doubts resolved in favor of the accused — The Court noted that doubts, if any, are resolved in favor of the accused; the mere fact that Reyes had a rifle was not sufficient proof that he was lying in ambush for Nicasio.

• "There is treachery when the offender commits any of the crimes against person, employing means, methods, or forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might make." — This is the Court's definition of treachery under Article 14, paragraph 16, Revised Penal Code, and serves as the starting point for its analysis.
• "The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor and without the slightest provocation on the part of the victim." — This passage states the canonical formulation of treachery's essence, which the Court applied to find that the killing was not treacherous.
• "The two conditions for treachery are that (1) at the time of the attack, the victim was not in a position to defend himself, and (2) the offender consciously adopted the particular means, method, or form of attack employed by him." — This enumerates the requisites of treachery, which the Court found absent.
• "Thus, if an unlicensed firearm was used in the commission of murder or homicide, the possession of the same would simply be considered as an aggravating circumstance." — This states the effect of R.A. No. 8294 on the separate illegal-possession charge and supports the retroactive application of the amendatory law.

• People vs. Rillorta, 180 SCRA 102 (1989) — Cited for the rule that there is no treachery if an assault is preceded by a heated exchange of words between the accused and the deceased.
• People vs. Rivera, 221 SCRA 647 (1993) — Cited for the rule that there is no treachery if the victim was aware of the hostility of the assailant toward him.
• People vs. Guillermo Nepomuceno, Jr., 309 SCRA 466 (1999) — Cited for the holding that under R.A. No. 8294, the use of an unlicensed firearm in the commission of murder or homicide is treated as an aggravating circumstance, and illegal possession or use of the unlicensed firearm is no longer separately punished.
• People vs. Bergante, 286 SCRA 629 (1998) — Cited in Nepomuceno for the rule that only one offense should be punished, either homicide or murder, and the use of the unlicensed firearm is only an aggravating circumstance; the provision may be given retroactive effect under Article 22, Revised Penal Code.
• People vs. Valdez, 304 SCRA 611 (1999) — Cited for the retroactive application of R.A. No. 8294 to spare the accused from a separate conviction for illegal possession of firearms, and for the limitation that the law cannot be applied as a special aggravating circumstance in complex multiple murder where it would unduly raise the penalty and acquire the character of an ex post facto law.
• People vs. Oliano, 287 SCRA 158 (1998) — Cited for the rule that actual damages require competent proof of the actual amount of loss, and that temperate damages of P10,000 may be awarded in lieu thereof when pecuniary loss is shown but cannot be proved with certainty.
• People vs. Botona, 304 SCRA 712 (1999) — Cited for the definition of treachery under Article 14, paragraph 16, Revised Penal Code.
• People vs. Vermudez, 302 SCRA 276 (1999) and People vs. Abrenica, 252 SCRA 54 (1996) — Cited for the essence of treachery as a sudden and unexpected attack on an unsuspecting victim.

• Article 14, paragraph 16, Revised Penal Code — Defines treachery as the employment of means, methods, or forms in the execution of crimes against persons that tend directly and specially to ensure execution without risk to the offender arising from the defense the offended party might make. The Court applied this provision and found treachery absent.
• Article 22, 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 it to R.A. No. 8294 because the new law was favorable to accused-appellant.
• Republic Act No. 8294, Section 1, third paragraph — Amended P.D. No. 1866 to provide that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered an aggravating circumstance. The Court applied it to hold that illegal possession is no longer separately punished and to treat the use of the unlicensed firearm as an aggravating circumstance.
• Presidential Decree No. 1866 — The original law on illegal possession of firearms and ammunition, as amended by R.A. No. 8294. The Court referenced it in explaining the change in the legal treatment of unlicensed firearms used in homicide or murder.
• Article 2224, Civil Code — Allows temperate damages when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty. The Court awarded P10,000 as temperate damages for burial and funeral expenses.
• Article 2219, in relation to Article 2206, Civil Code — Basis for moral damages. The Court awarded P50,000 moral damages to the heirs.
• Article 2230, Civil Code — Basis for exemplary damages when an aggravating circumstance attended the commission of the crime. The Court awarded P25,000 exemplary damages due to the aggravating circumstance of illegal possession of firearm.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De leon Jr., and Sandoval-Gutierrez, JJ., concur. Vitug, J., on official leave.