People of the Philippines vs. William Montinola

The use of an unlicensed firearm in a homicide or murder committed by reason or on the occasion of robbery cannot be prosecuted as a separate offense of illegal possession of firearm under R.A. No. 8294, but neither may it be appreciated as a special aggravating circumstance in robbery with homicide where the amendatory law took effect only after the crime was committed, as retroactive application would render it an ex post facto law.

Accused-appellant William Muyco Montinola was prosecuted for the robbery and killing of Jose Eduardo Reteracion, a passenger in the same jeepney in Iloilo City. The charges were governed by P.D. No. 1866, which penalized the unlawful possession of firearms and, in its second paragraph, imposed the death penalty where homicide or murder was committed with the use of an unlicensed firearm, and by R.A. No. 7659, which had restored the death penalty. While the case was pending, R.A. No. 8294 amended P.D. No. 1866, providing in the third paragraph of Section 1 that the use of an unlicensed firearm in a homicide or murder shall be considered merely as an aggravating circumstance.

At noon of 18 November 1996, William Muyco Montinola boarded a passenger jeepney driven by Jesus Hibinioda and bound for Libertad Plaza, Iloilo City. Among the passengers was Jose Eduardo Reteracion. Montinola suddenly drew an unlicensed .380 caliber Llama pistol with Serial No. 170257, aimed it at Reteracion's neck, and directed him to hand over his money or else he would be killed. He then fired successive shots, and Reteracion slumped dead.

Police Officer Garcia, who heard the shots, approached the jeepney and met Montinola carrying a gun. Garcia chased him, and Montinola fled with his jacket bloodstained, throwing bundles of money along the way. Garcia and bystanders picked up the money strewn on the path. Police Officer Hollero eventually caught up with Montinola, who was brought to the police station together with his gun.

Senior Police Officer Ely Superio of the PNP Firearms Unit determined that the gun was not licensed and that Montinola had no permit to possess or carry it. The paraffin test on Montinola's hands yielded positive for gunpowder nitrate, indicating that he had recently fired a gun. Comparison of the slugs from the tested bullets with those recovered from the victim's body showed that the confiscated gun was the same weapon used to shoot and kill Reteracion.

The victim's wife spent P191,835 for the burial and wake of her husband and failed to recover P39,500 of the money taken from him. She became depressed, sleepless, and without appetite because of her grief over her husband's death.

Montinola was charged with robbery with homicide in Criminal Case No. 47168 and illegal possession of firearm in Criminal Case No. 47169. Upon arraignment on 6 January 1997, he entered a plea of not guilty to both charges, and a joint trial followed. On 19 February 1997, after the prosecution had presented three witnesses, he moved to withdraw his plea of not guilty and, when re-arraigned, pleaded guilty to both charges; trial on the merits nonetheless continued.

The trial court found Montinola guilty beyond reasonable doubt of both charges, sentenced him to reclusion perpetua for robbery with homicide and to death for illegal possession of firearm, and ordered him to pay the victim's family P50,000 as death indemnity, P191,835 for burial and wake expenses, P39,000 for the unrecovered part of the money taken from the victim, and P100,000 as moral damages.

• Retroactive Application of R.A. No. 8294: Montinola contended that the use of an unlicensed firearm in the crime of murder or homicide should be appreciated as an aggravating circumstance and not as a separate offense pursuant to Section 1 of R.A. No. 8294, which amended P.D. No. 1866. He argued that the new law may be retroactively applied because it is favorable to him, effectively reducing the penalties for simple and aggravated forms of illegal possession, and prayed that the case for illegal possession of firearm be dismissed.
• Impropriety of the Death Penalty: Montinola assigned as his lone error that it would be an error to impose the death penalty for the crime of illegal possession of firearm because of the enactment of R.A. No. 8294.

• Misplaced Invocation of the Amended Law: The Office of the Solicitor General maintained that Montinola's invocation of the benefits of the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, was misplaced, because the use of an unlicensed firearm shall be considered as an aggravating circumstance in the crime of murder or homicide only, which are classified as crimes against persons, and not in robbery with homicide, which is classified as a crime against property under Title X of the Revised Penal Code.
• Ex Post Facto Application: The OSG argued that to apply the provisions of R.A. No. 8294 and treat the use of an unlicensed firearm as a special aggravating circumstance would contravene Article 22 of the Revised Penal Code and Section 22, Article III, of the 1987 Constitution prohibiting the ex post facto application of law, since the higher penalty of death would be meted on the accused and he would suffer a greater and harsher punishment than that which the law imposed when the act was committed.
• Separate Convictions Supported: The OSG asserted that there is no legal obstacle to the conviction of Montinola for the separate crimes of robbery with homicide and illegal possession of firearm, as supported by People vs. Cerveto, and sought affirmance of the trial court's ruling adjudging him guilty of two separate crimes. It recommended, however, that in the charge of illegal possession of firearm the accused be given the benefit of the lighter penalty provided in R.A. No. 8294, ranging from four years and two months, as minimum, to six years, as maximum, of prision correccional, and that he be ordered to return the amount of P19,300 representing the difference between the amount taken away and the amount recovered.

• Separate Offense or Aggravating Circumstance: Whether the use of an unlicensed firearm in a killing perpetrated by reason or on the occasion of the robbery may be treated as a separate offense or as an aggravating circumstance in the crime of robbery with homicide.
• Retroactive Application of R.A. No. 8294: Whether R.A. No. 8294, which took effect after the crime was committed, may be given retroactive effect in favor of the accused.
• Mitigating Plea of Guilty: Whether the accused's change of plea from not guilty to guilty, made only after the prosecution had presented some evidence, may be credited in his favor as a mitigating circumstance.

• Separate Offense or Aggravating Circumstance: No. Under the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, there can be no separate conviction for illegal possession of firearm if homicide or murder is committed with the use of an unlicensed firearm; such use shall be considered merely as an aggravating circumstance in the homicide or murder committed.
• Retroactive Application of R.A. No. 8294: Yes, but only insofar as it is favorable to the accused. The new law was given retroactive effect to spare Montinola from a separate conviction for illegal possession of firearm, but it cannot be applied to aggravate the robbery with homicide, since that would increase the penalty from reclusion perpetua to death and acquire the character of an ex post facto law.
• Mitigating Plea of Guilty: No. The mitigating circumstance of plea of guilty cannot be credited because the change of plea was made only after the presentation of some evidence for the prosecution, and the accused must have voluntarily confessed his guilt prior to the presentation of the evidence for the prosecution.

• Separate Offense or Aggravating Circumstance: The prosecution duly established by evidence independent of Montinola's plea of guilty and confession of guilt that he killed the victim after having succeeded in divesting the latter of his money, and that the gun he used, seized from him and offered in evidence, was unlicensed. On 18 November 1996, when the crime was committed, P.D. No. 1866 provided in its second paragraph that if homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. In People vs. Alolod, where the accused grabbed a bag containing money from a jeepney passenger and shot him twice with a .38 caliber paltik revolver, the Court affirmed a conviction for two separate crimes of robbery with homicide and illegal possession of firearm. The present case had a similar set of facts, the only difference being that the crimes were committed on 18 November 1996 when R.A. No. 7659 restoring the death penalty was already in effect. Thus, in line with Alolod and applying P.D. No. 1866 and R.A. No. 7659, Montinola could be held guilty of two separate crimes and sentenced to reclusion perpetua for the first and death for the second. However, on 6 July 1997, while his case was still pending, R.A. No. 8294 took effect, amending P.D. No. 1866 so that the third paragraph of Section 1 now provides that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as an aggravating circumstance. In recent cases, the Court ruled that there could be no separate conviction for illegal possession of firearm if homicide or murder is committed with the use of an unlicensed firearm; instead, such use shall be considered merely as an aggravating circumstance in the homicide or murder committed. Hence, insofar as the new law would be advantageous to Montinola by sparing him from a separate conviction for illegal possession of firearm, it was given retroactive effect. People vs. Cervito, relied upon by the OSG, was held inapplicable because that case did not call for the application of the second paragraph of Section 1 of P.D. No. 1866 or the third paragraph of Section 1 thereof, as amended by R.A. No. 8294, since the unlicensed firearm recovered from the scene of the crime was not the one used in the homicide committed on the occasion of the robbery; the prosecution evidence itself disclosed that such gun had not been fired, as it had no spent shells. The accused therein was nonetheless convicted of two crimes of robbery with homicide and illegal possession of firearm, and although the crimes were committed on 10 July 1995 before the effectivity of R.A. No. 8294, the Court applied the said law with respect to the penalty for the crime of illegal possession of firearm for being more favorable to the accused.

• Retroactive Application of R.A. No. 8294: The next question was whether the use of an unlicensed firearm in the killing perpetrated by reason or on the occasion of the robbery may be considered as an aggravating circumstance in the crime of robbery with homicide. It is undisputed that, pursuant to the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, such use of an unlicensed firearm is a special aggravating circumstance in the homicide or murder committed. The rulings on whether the aggravating circumstances attending the killing may be appreciated in fixing the appropriate penalty for robbery with homicide are conflicting. In People vs. Galang and People vs. Semañada, treachery and cruelty, which attended the killing, were considered as aggravating circumstances in determining the penalty for robbery with homicide; in People vs. Nismal, the circumstance of disregard of respect due the victim on account of his rank aggravated the crime of robbery with homicide. In People vs. Capillas, People vs. Ang, and People vs. Punzalan, the Court held that when the killing is committed by reason or on the occasion of the robbery, the qualifying circumstances attendant to the killing would be considered as generic aggravating circumstances, and in all three cases the circumstance of abuse of superior strength served to aggravate the crime, with evident premeditation also considered as aggravating in the third case. However, in those three cases, as well as in People vs. Ponciano, the Court said that disregard of age, sex or rank is not aggravating in robbery with homicide, which is primarily a crime against property, as the homicide is regarded as merely incidental to the robbery. In the more recent case of People vs. Salvatiera, reiterated in People vs. Cando and People vs. Macabales, the Court held that when treachery obtains in the special complex crime of robbery with homicide, such treachery is to be regarded as a generic aggravating circumstance, since robbery with homicide is a composite crime with its own definition and special penalty in the Revised Penal Code, and having formed part of the circumstances proven concerning the actual commission of the crime, such treachery would help determine the penalty to be imposed. Furthermore, the special aggravating circumstance of use of an unlicensed firearm mentioned in Article 296 of the Revised Penal Code has been held to be applicable only to cases of robbery in band under Article 295 of the same Code; it was not appreciated in fixing the penalty for robbery with homicide under Article 294 even if committed by a band with the use of unlicensed firearms, the element of band being considered merely as an ordinary aggravating circumstance. At any rate, even assuming that the aggravating circumstances present in the commission of homicide or murder may be counted in the determination of the penalty for robbery with homicide, the Court cannot appreciate in this case the special aggravating circumstance of use of an unlicensed firearm mentioned in the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, because such law was not yet enacted when the crime was committed by Montinola and cannot therefore be given retroactive effect for being unfavorable to him. Under Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, robbery with homicide is punishable by reclusion perpetua to death, which are both indivisible penalties, and Article 63 provides that in all cases in which the law prescribes a penalty composed of two indivisible penalties, the greater penalty shall be applied when the commission of the deed is attended by one aggravating circumstance. If the special aggravating circumstance of use of unlicensed firearm under Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, were applied retroactively, the imposable penalty would be death. Conformably with People vs. Valdez, reiterated in People vs. Macoy, insofar as the new law would aggravate the crime of robbery with homicide and increase the penalty from reclusion perpetua to death, it would not be given retroactive application, lest it acquire the character of an ex post facto law. Hence, the Court did not appreciate that special aggravating circumstance, and there being no modifying circumstances, the lesser penalty of reclusion perpetua was imposed.

• Mitigating Plea of Guilty: The trial court was correct in not crediting in favor of Montinola the mitigating circumstance of plea of guilty, since the change of his plea from not guilty to guilty was made only after the presentation of some evidence for the prosecution. To be entitled to such mitigating circumstance, the accused must have voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution. The following requirements must concur: (1) the accused spontaneously confessed his guilt; (2) the confession of guilt was made in open court, that is, before a competent court trying the case; and (3) the confession of guilt was made prior to the presentation of evidence for the prosecution. The third requisite was wanting.

• Retroactive Effect of Penal Laws Favorable to the Accused — Article 22 of the Revised Penal Code provides that penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony who is not a habitual criminal. The Court applied this rule to R.A. No. 8294, which took effect on 6 July 1997 while the case was pending, holding that insofar as the new law would spare Montinola from a separate conviction for illegal possession of firearm, it was advantageous to him and was therefore given retroactive effect.
• Ex Post Facto Law — Prohibition Against Retroactive Aggravation — A penal law cannot be applied retroactively where it would aggravate the crime or increase the penalty, as this would acquire the character of an ex post facto law. The Court held that R.A. No. 8294 could not be applied to treat the use of an unlicensed firearm as a special aggravating circumstance in the robbery with homicide, because it was not yet enacted when the crime was committed and its retroactive application would increase the penalty from reclusion perpetua to death.
• No Separate Conviction for Illegal Possession of Firearm Under R.A. No. 8294 — Under the third paragraph of 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 shall be considered merely as an aggravating circumstance in the homicide or murder committed, and there can be no separate conviction for illegal possession of firearm.
• Special Complex Crime of Robbery with Homicide — Robbery with homicide is a composite crime with its own definition and special penalty in the Revised Penal Code, classified as a crime against property under Title X, with the homicide regarded as merely incidental to the robbery. Under Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, it is punishable by reclusion perpetua to death, both indivisible penalties.
• Article 63, Revised Penal Code — Two Indivisible Penalties — In all cases in which the law prescribes a penalty composed of two indivisible penalties, the greater penalty shall be applied when the commission of the deed is attended by one aggravating circumstance; where there are no modifying circumstances, the lesser penalty shall be imposed.
• Mitigating Circumstance of Plea of Guilty — Requisites — To be entitled to the mitigating circumstance of plea of guilty under Article 13(7) of the Revised Penal Code, the following requisites must concur: (1) the accused spontaneously confessed his guilt; (2) the confession of guilt was made in open court, that is, before a competent court trying the case; and (3) the confession of guilt was made prior to the presentation of evidence for the prosecution.
• Appellate Jurisdiction Over Capital Offenses — The Supreme Court, and not the Court of Appeals, has appellate jurisdiction over all criminal cases in which the penalty imposed is reclusion perpetua or higher. As to judgments in which the death penalty is imposed, no notice of appeal is necessary, as the same is subject to automatic review. Where cases have been consolidated and jointly tried, and only one decision is rendered sentencing the accused to death in one and to reclusion perpetua in the others, he is deemed to have appealed from the judgment in the latter cases.

• "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 third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, which the Court quoted as the controlling amendatory provision and which supplied the basis for giving the new law retroactive effect in favor of the accused.
• "In recent cases, we ruled that there could be no separate conviction for illegal possession of firearm if homicide or murder is committed with the use of an unlicensed firearm; instead, such use shall be considered merely as an aggravating circumstance in the homicide or murder committed." — This passage states the ratio decidendi on the first issue and is the canonical formulation of the rule barring a separate conviction for illegal possession of firearm under R.A. No. 8294.
• "Conformably with our ruling in People v. Valdez, reiterated in People v. Macoy, insofar as the new law would aggravate the crime of robbery with homicide and increase the penalty from reclusion perpetua to death, it would not be given retroactive application, lest it would acquire the character of an ex post facto law." — This passage articulates the ex post facto limitation on the retroactive application of R.A. No. 8294 and is the decisive ground for refusing to appreciate the special aggravating circumstance of use of an unlicensed firearm in the robbery with homicide.
• "To be entitled to such mitigating circumstance, the accused must have voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution." — This passage states the controlling rule on the mitigating circumstance of plea of guilty, which the Court applied to deny Montinola the benefit of his change of plea.

• People vs. Alolod, 266 SCRA 154 [1997] — Cited as the prior ruling affirming a conviction for two separate crimes of robbery with homicide and illegal possession of firearm where the accused shot a jeepney passenger with a .38 caliber paltik revolver; the Court distinguished the present case on the ground that R.A. No. 8294 had since taken effect.
• People vs. Cervito, 315 SCRA 611 [1999] — Relied upon by the OSG but held inapplicable, because the unlicensed firearm recovered from the scene of the crime was not the one used in the homicide committed on the occasion of the robbery; the Court nonetheless applied R.A. No. 8294 to the penalty for illegal possession of firearm for being more favorable to the accused.
• People vs. Valdez, 304 SCRA 611 [1999], reiterated in People vs. Macoy, G.R. No. 138674, 22 June 2000 — Controlling precedent for the rule that a new law which would aggravate the crime of robbery with homicide and increase the penalty from reclusion perpetua to death cannot be given retroactive application, lest it acquire the character of an ex post facto law.
• People vs. Molina, 292 SCRA 742 [1998], People vs. Feloteo, 295 SCRA 607 [1998], and People vs. Narvasa, 298 SCRA 637 [1998] — Cited collectively as the recent cases holding that there could be no separate conviction for illegal possession of firearm if homicide or murder is committed with the use of an unlicensed firearm.
• People vs. Salvatiera, 257 SCRA 489 [1996], reiterated in People vs. Cando, G.R. No. 128114, 25 October 2000, and People vs. Macabales, G.R. No. 111102, 8 December 2000 — Cited for the rule that treachery in the special complex crime of robbery with homicide is regarded as a generic aggravating circumstance, since robbery with homicide is a composite crime with its own definition and special penalty.
• People vs. Alitagtag, 309 SCRA 325 [1999], as affirmed in People vs. Contreras, G.R. Nos. 137123-34, 23 August 2000 — Cited for the rule that where cases have been consolidated and jointly tried and only one decision is rendered sentencing the accused to death in one and to reclusion perpetua in the others, he is deemed to have appealed from the judgment in the latter cases.
• People vs. Apduhan, 24 SCRA 798 [1968] and People vs. Cruz, 133 SCRA 426 [1984] — Cited for the rule that the special aggravating circumstance of use of an unlicensed firearm under Article 296 of the Revised Penal Code is applicable only to cases of robbery in band under Article 295, and was not appreciated in fixing the penalty for robbery with homicide under Article 294.
• People vs. Kayanan, 83 SCRA 437 [1978], People vs. Lungbos, 162 SCRA 383 [1988], and People vs. Verano, 163 SCRA 614 [1988] — Cited for the rule that the mitigating circumstance of plea of guilty cannot be credited where the change of plea was made only after the presentation of some evidence for the prosecution.
• People vs. Crisostomo, 160 SCRA 47 [1988] and People vs. Bueza, 188 SCRA 683 [1990] — Cited for the requisites of the mitigating circumstance of plea of guilty under Article 13(7) of the Revised Penal Code.
• People vs. Aquino, 322 SCRA 769 [2000], People vs. Baltar, G.R. No. 125306, 11 December 2000, and People vs. Galo, G.R. No. 132025, 16 January 2001 — Cited as the current jurisprudence supporting the reduction of the award of moral damages from P100,000 to P50,000.

• Article 22, Revised Penal Code — Provides that penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony who is not a habitual criminal. Applied to give R.A. No. 8294 retroactive effect insofar as it spared Montinola from a separate conviction for illegal possession of firearm.
• Article 63, Revised Penal Code — Provides that in all cases in which the law prescribes a penalty composed of two indivisible penalties, the greater penalty shall be applied when the commission of the deed is attended by one aggravating circumstance, and the lesser penalty when there are no modifying circumstances. Applied to impose reclusion perpetua rather than death, there being no modifying circumstances once the special aggravating circumstance was excluded.
• Article 294, Revised Penal Code, as amended by R.A. No. 7659 — Defines and penalizes robbery with homicide with the penalty of reclusion perpetua to death, both indivisible penalties. This was the provision under which Montinola was sentenced.
• Article 296, Revised Penal Code — Defines a band and the penalty incurred by its members, providing that when any of the arms used in the commission of the offense is an unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum of the corresponding penalty provided by law, without prejudice to the criminal liability for illegal possession of such unlicensed firearms. Cited to show that the special aggravating circumstance of use of an unlicensed firearm has been held applicable only to robbery in band under Article 295, not to robbery with homicide under Article 294.
• Article 13(7), Revised Penal Code — Lists the plea of guilty as a mitigating circumstance. Applied to deny Montinola the benefit of his change of plea because it was made only after the prosecution had presented evidence.
• Section 1, P.D. No. 1866, as amended by R.A. No. 8294 — The second paragraph of the original provision imposed the death penalty where homicide or murder is committed with the use of an unlicensed firearm; the third paragraph, as amended, provides that such use shall be considered as an aggravating circumstance. The amendatory provision supplied the basis for the acquittal of Montinola on the separate charge of illegal possession of firearm.
• Article VIII, Section 5(2)(d), 1987 Constitution — Confers on the Supreme Court appellate jurisdiction over all criminal cases in which the penalty imposed is reclusion perpetua or higher. Cited to explain why the appeal properly belonged to the Supreme Court and not the Court of Appeals.
• Section 3(c), in relation to Section 3(a), and Section 3(d), Rule 122, Revised Rules of Criminal Procedure — Govern the manner of taking an appeal in criminal cases, including the rule that no notice of appeal is necessary where the death penalty is imposed because the case is subject to automatic review. Cited in connection with the procedural treatment of Montinola's notice of appeal.

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Pardo, Buena, De Leon, Jr., and Sandoval-Gutierrez, JJ., concurred. Panganiban, Quisumbing, and Ynares-Santiago, JJ., were abroad on official business; Gonzaga-Reyes, J., was on leave.