People vs. Oco

Where the mitigating circumstance of voluntary surrender offsets the aggravating circumstance of use of motor vehicle, the penalty for murder qualified by treachery shall be reclusion perpetua, the lesser of the two indivisible penalties prescribed under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, pursuant to Article 63(4) of the Code.

The appellant Raul Oco, also known as "Boy Usher," and three co-accused — SPO2 Armando Lozano, Dave Samson, and Eutiquiano Pacaña, Jr. — were residents of A. Lopez Street, Cebu City. The prosecution theorized that the shooting incident was drug-related: the victim Alden Abiabi was a known anti-drug advocate, while the appellant was suspected of being a drug lord, and the co-accused allegedly had connections to the drug trade. The case reached the Supreme Court on automatic review because the trial court imposed the death penalty for the murder conviction.

On November 24, 1997, at around 9:30 p.m., Herminigildo Damuag was driving his motorcycle along V. Rama Avenue, Cebu City, with Alden Abiabi riding as his backrider. When they reached the vicinity of Pica Lumber, a white Tamaraw FX AUV overtook and blocked their path, forcing Damuag to slow down. A second motorcycle with two riders appeared from behind, and one of its riders fired two shots in close succession. Abiabi pushed Damuag with his body and fell from the motorcycle face down onto the pavement. The Tamaraw FX sped away. As Damuag struggled to control his motorcycle, a third motorcycle passed from behind; his motorcycle zigzagged toward the gutter and he was thrown off. Upon standing, Damuag realized he was hit on the right side of his body and heard a burst of gunfire from behind. He saw the third motorcycle stopped about two to three meters away, with the appellant at the back holding a short firearm. The appellant fired at Damuag but missed; Damuag ran, but the third motorcycle chased him. Near Five Brothers restaurant, the appellant fired two more shots at Damuag from four to five meters away. Damuag was rushed to Southern Islands Hospital and later transferred to Sacred Heart Hospital, where he survived due to timely surgery. He sustained four gunshot wounds — two at the side of his chest, one at the back, and one at the abdominal area. His attending physician, Dr. Dale Pasco, opined that without surgery Damuag would have died.

Abiabi did not survive the ambush. He sustained eight gunshot wounds on different parts of his body. Dr. Jesus P. Cerna testified that a bullet was deeply embedded in Abiabi's thoracic vertebrae and could not be retrieved. Necropsy Report No. N-97-191 attributed his death to "shock, secondary to multiple gunshot wounds, face, body and extremities." At the time of his death, Abiabi was a legal researcher at Clear, Inc., earning P8,000 monthly. His wife, Amelia Abiabi, testified that she spent P250,000 for funeral services, P50,000 of which was for the coffin alone. Damuag, prior to the shooting, earned P150 a day as a driver. His hospitalization bills allegedly amounted to P160,000, and he spent P5,000 for medicines after discharge.

Damuag did not recognize the driver and passenger of the second motorcycle or the driver of the third motorcycle because they were wearing helmets. He recognized the appellant as one of the triggermen because the appellant was not wearing a helmet but instead had a towel tied around his forehead, wearing a sleeveless undershirt (sando) and maong short pants. Ronald Barellano, a sixteen-year-old candle and flower vendor, corroborated Damuag's identification. Barellano testified that he and eight other companions, including fourteen-year-old Salem Tenebroso, were buying barbecue across the cemetery when they witnessed the shooting. He saw the appellant arrive aboard the third motorcycle and fire three successive shots at Abiabi, who was sprawled face down on the ground. The appellant then fired at Damuag, who tried to run but was chased and shot twice more near Five Brothers restaurant. Barellano had a good look at the appellant's face from about four to five meters, the area being illuminated by a lamp post. He recognized the appellant because he used to accompany his friend Salem Tenebroso to the appellant's residence to feed the latter's roosters. He failed to recognize the three other riders because they wore helmets. Other prosecution witnesses — Magno Ybanez, Jr. and Virginia Gamboa — claimed to have seen the appellant and the three co-accused near the cemetery before the shooting, and identified the co-accused as riders of the second and third motorcycles.

The appellant denied participation and presented an alibi. He testified that on November 24, 1997, he played mahjong from 3:00 p.m. to 9:00 p.m., then went home to have supper and look for his five-year-old son. Unable to find his son, he proceeded to Sambagan to meet Boy Misa, passing by the Our Lady of Lourdes Chapel, where he entered to look at the clothes of the Virgin for the forthcoming fiesta. Inside, he saw a group of women, including the wife of co-accused Pacaña, who told him a scheduled meeting was postponed. He heard an "unusual burst" but did not investigate. He went home and was later awakened by his wife, who told him his good friend Alden Abiabi had been shot. The appellant claimed he and Abiabi were good friends and he had no motive to kill him; he also denied being a drug lord and stated he was not on good terms with his three co-accused, negating any basis for conspiracy. His alibi was corroborated by Lolita Mosqueda, Ernesto Herhuela, and Herminia Ferraren. The defense also presented Salem Tenebroso, Jr., who recanted his earlier affidavit identifying the appellant, claiming he did not recognize any perpetrators because all wore helmets and that a police investigator told him to state the appellant was the killer. Reporter Patsy Bolls testified that she interviewed Damuag on December 7, 1997, and Damuag told her he did not see who shot him and Abiabi. PO1 Bienvenido Arlan, Jr. corroborated Bolls's account. The trial court, however, gave full credence to the positive identification by Damuag and Barellano, disbelieved the testimony of Gamboa and Ybanez as to the co-accused's identities, and acquitted the three co-accused while convicting the appellant.

• Absence of Motive: The appellant maintained that he had no motive to kill Abiabi, a known anti-drug advocate, because he was not a drug lord as the prosecution depicted him. He pointed out that Abiabi's wife admitted having a debt of gratitude to him for lending her money in the past, and that Damuag was his close friend, giving him no reason to injure the latter.
• Incredulous Identification: The appellant argued that his identification as one of the assailants was against human experience, since it would be illogical for an assassin to kill without covering his face. He claimed that the fact that his co-accused used helmets to hide their identities made it more logical for him to also use a helmet while shooting in plain view of many witnesses.
• Alibi: The appellant insisted on his alibi that he was inside a chapel in Sambagan, Cebu City, while the shooting incident was in progress.

• Motive: Whether the prosecution's failure to prove motive exculpates the appellant despite his positive identification by credible witnesses.
• Credibility of Identification: Whether the appellant's identification as one of the assailants is credible despite his not wearing a helmet while his co-accused did.
• Alibi: Whether the appellant's alibi can overcome his positive identification by prosecution witnesses.
• Effect of Co-Accused's Acquittal: Whether the acquittal of the appellant's three co-accused necessarily entitles the appellant to acquittal.
• Qualifying Circumstance of Treachery: Whether treachery attended the killing of Abiabi and the wounding of Damuag.
• Aggravating Circumstances: Whether the aggravating circumstances of abuse of superior strength, nighttime, band (en cuadrilla), aid of armed men, evident premeditation, and use of unlicensed firearms are present.
• Mitigating Circumstance of Voluntary Surrender: Whether the appellant is entitled to the mitigating circumstance of voluntary surrender.
• Proper Penalties: Whether the penalty imposed by the trial court for murder and frustrated murder is correct.
• Damages: Whether the awards of damages by the trial court are proper.

• Motive: No. Motive is not an essential element of a crime and need not be proved for purposes of conviction, especially where the appellant was positively identified by at least two credible witnesses.
• Credibility of Identification: Yes. The appellant's identification was credible. Criminals carry out their criminal designs differently; some cover their faces while others boldly perform criminal acts in full view of the public. The appellant belonged to the latter category, having worn only a towel around his forehead.
• Alibi: No. The alibi was worthless against positive identification. The distance between the chapel (where appellant claimed to be) and the crime scene could be negotiated on foot within five minutes, making it not physically impossible for the appellant to be at the crime scene.
• Effect of Co-Accused's Acquittal: No. The acquittal of the co-accused based on reasonable doubt as to their identity does not negate the trial court's findings on the acts constituting the crimes. The appellant's conviction resulted not only from the finding of conspiracy but from his own act of shooting the victims.
• Qualifying Circumstance of Treachery: Yes. Treachery attended both crimes. The victims were suddenly attacked and rendered unable to defend themselves, with the assailants consciously adopting means ensuring the success of the attack without risk to themselves.
• Aggravating Circumstances: Abuse of superior strength was present but absorbed by treachery. Use of motor vehicle was appreciated as a generic aggravating circumstance. Nighttime was not appreciated because the crime scene was illuminated by a lamp post. Band (en cuadrilla) was not appreciated because only two of the four accused carried firearms. Aid of armed men was not appreciated because all accused were charged as principals, not accomplices. Evident premeditation was not appreciated for lack of evidence. Use of unlicensed firearms was not appreciated for lack of proof that the firearms were unlicensed.
• Mitigating Circumstance of Voluntary Surrender: Yes. The appellant voluntarily surrendered upon learning of the warrant's issuance, before being arrested, and his surrender was spontaneous, showing his interest to surrender unconditionally to the authorities.
• Proper Penalties: The death penalty for murder was reduced to reclusion perpetua, the mitigating circumstance of voluntary surrender offsetting the aggravating circumstance of use of motor vehicle, pursuant to Article 63(4) of the Revised Penal Code. For frustrated murder, an indeterminate penalty of six years and one day of prision mayor as minimum to fourteen years and eight months of reclusion temporal as maximum was imposed.
• Damages: The awards were modified. For the heirs of Abiabi: P50,000 actual damages (coffin), P50,000 civil indemnity, and P25,000 temperate damages. No award for loss of earning capacity due to absence of documentary evidence. For Damuag: P25,000 temperate damages in lieu of unsubstantiated actual damages.

• Motive: Motive is not an essential element of a crime and need not be proved for purposes of conviction. Standing alone, the failure of the prosecution to adduce proof of the appellant's motive would not exculpate him, especially since he was positively identified by at least two credible witnesses as one of the assailants. The absence of a proven motive is not a defense where positive identification exists.

• Credibility of Identification: The fact that the appellant's companions wore helmets does not make his identification incredulous. Criminals carry out their criminal designs differently — some cover their faces, while others boldly perform criminal acts in full view of the public. The appellant belonged to the latter category, having worn only a towel tied around his forehead. Damuag, as a surviving victim, gave an unequivocal and direct identification of the appellant as his gunman. It is the natural reaction of victims of criminal violence to strive to see the looks and faces of their assailants. Barellano corroborated Damuag's identification with a detailed account of the incident, and both witnesses had no ulterior motive to be untruthful. Where there is nothing to indicate that a witness was actuated by improper motive, positive identification and categorical declarations on the witness stand deserve full faith and credence. The trial court's findings on the credibility of witnesses must be respected on appeal, it being in the best position to calibrate credibility.

• Alibi: For alibi to prosper, the requirements of time and distance must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed; he must also demonstrate by clear and convincing evidence that it was physically impossible for him to be at the scene of the crime. Defense witness Ferraren testified that the distance between the chapel and the crime scene could be negotiated on foot within five minutes, making it not impossible for the appellant to be at the crime scene. Against positive identification by credible witnesses, the alibi was worthless.

• Effect of Co-Accused's Acquittal: The acquittal of the co-accused was based on reasonable doubt as to their identity, not on a finding that the crimes were not committed. This does not negate the trial court's findings on the existence of the acts constituting the crimes. The appellant's conviction resulted not only from the trial court's finding of conspiracy but from his own act of shooting Abiabi and Damuag, independently establishing his liability as a principal by direct participation.

• Qualifying Circumstance of Treachery: Treachery exists 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 take. Two conditions must concur: (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 motorcycle driven by Damuag was suddenly blocked by a Tamaraw FX; without warning, the backrider of the second motorcycle fired successive shots. While Abiabi lay helplessly face down, the appellant shot him. Damuag, already wounded, tried to escape but the appellant pursued and shot him three more times. The unexpected and sudden attack, rendering the victims unable and unprepared to defend themselves, constitutes alevosia.

• Aggravating Circumstances: Abuse of superior strength was present — the malefactors outnumbered the victims and at least two were armed, deliberately taking advantage of their combined strength — but it is absorbed by treachery. Use of motor vehicle was present as a generic aggravating circumstance, the assailants having used motorbikes to go to the crime scene, carry out the attack, and facilitate escape. Nighttime was not appreciated because the crime scene was illuminated by a lamp post; nocturnity does not become a modifying factor when the place is adequately lighted. Band (en cuadrilla) was not appreciated because more than three armed malefactors must take part, all as principals by direct participation; the evidence showed only two carried firearms. Aid of armed men was not appreciated because all four accused were charged as principals, not accomplices, and the remaining suspects were never identified. Evident premeditation was not appreciated because there was no evidence of the time when the offender determined to commit the crime, an act indicating he clung to that determination, or a sufficient lapse of time for reflection. Use of unlicensed firearms was not appreciated because no evidence was adduced to prove the firearms were unlicensed.

• Mitigating Circumstance of Voluntary Surrender: For voluntary surrender to be appreciated, three requisites must be present: (1) the offender has not been actually arrested; (2) the offender surrendered himself to a person in authority or the latter's agent; and (3) the surrender was voluntary. The surrender must be spontaneous, showing the accused's interest to surrender unconditionally, either because he acknowledged his guilt or wished to save the authorities the trouble and expense of search and capture. The warrant was issued on January 19, 1998; immediately upon learning of it and before being served, the appellant contacted co-accused Lozano and communicated his desire to surrender. He was fetched at 12:15 a.m. on January 21, 1998, and brought to the PNP Jail. Judge Ocampo himself noted the voluntary surrender. The appellant's testimony on the circumstances of his surrender was never rebutted. This mitigating circumstance offsets the aggravating circumstance of use of motor vehicle.

• Proper Penalties: Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, murder qualified by treachery is punishable by reclusion perpetua to death. The aggravating circumstance of use of motor vehicle would have raised the penalty to death under Article 63, but the mitigating circumstance of voluntary surrender offsets it, and pursuant to Article 63(4), the lesser penalty — reclusion perpetua — is imposed. For frustrated murder, under Article 50, the penalty next lower in degree than that prescribed for the consummated felony is imposed. Applying the same offsetting, the penalty should have been reclusion temporal in its medium period. Under the Indeterminate Sentence Law, the indeterminate penalty of six years and one day of prision mayor as minimum to fourteen years and eight months of reclusion temporal as maximum was imposed.

• Damages: The trial court's unspecified awards of P1,000,000 and P500,000 were modified. For the heirs of Abiabi: P50,000 actual damages for the duly receipted coffin expense; P50,000 civil indemnity; and P25,000 temperate damages. The remainder of the P250,000 funeral claim was unsubstantiated. No award for loss of earning capacity was made because documentary evidence is required, and the case does not fall under the two exceptions (self-employed earning less than minimum wage, or daily wage worker earning less than minimum wage). For Damuag: P25,000 temperate damages in lieu of unsubstantiated actual damages, since it cannot be denied that he suffered pecuniary loss.

• Motive is not an essential element of a crime — Motive need not be proved for purposes of conviction. The failure of the prosecution to adduce proof of motive does not exculpate the accused, especially where there is positive identification by credible witnesses.

• Positive identification prevails over alibi — For alibi to prosper, the requirements of time and distance must be strictly met: the accused must prove not only that he was somewhere else when the crime was committed, but also that it was physically impossible for him to be at the scene of the crime. Where the distance between the accused's claimed location and the crime scene can be negotiated on foot within minutes, alibi cannot overcome positive identification.

• Treachery (alevosia) — Treachery exists 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. Two conditions must concur: (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.

• Abuse of superior strength absorbed by treachery — Where treachery is present, the aggravating circumstance of abuse of superior strength is absorbed, since treachery already encompasses the deliberate advantage of superior strength to insure the execution of the crime without risk to the offender.

• Nighttime as aggravating circumstance — Nighttime is aggravating only when it facilitated the commission of the crime or was especially sought or taken advantage of for the purpose of impunity. The essence is the obscuridad afforded by nighttime, not merely its chronological onset. Nocturnity does not become a modifying factor when the place is adequately lighted.

• Band (en cuadrilla) — A crime is committed by a band when more than three armed malefactors take part in its commission. The four armed persons must all be principals by direct participation who acted together in the execution of the crime. Any weapon capable of inflicting serious or fatal injuries may be considered arms. Where evidence shows only two of the accused carried firearms, en cuadrilla cannot be appreciated.

• Aid of armed men — Aid of armed men requires that the armed men are accomplices who take part in a minor capacity, directly or indirectly. Where all accused are charged as principals, this circumstance cannot be appreciated.

• Evident premeditation — For evident premeditation to be appreciated, there must be proof as clear as the killing itself of: (1) the time when the offender determined to commit the crime; (2) an act indicating that he clung to his determination; and (3) a sufficient lapse of time between determination and execution to allow reflection. It must be based on external, evident facts indicating deliberate planning, not merely suspected.

• Voluntary surrender as mitigating circumstance — Three requisites must be present: (1) the offender has not been actually arrested; (2) the offender surrendered himself to a person in authority or the latter's agent; and (3) the surrender was voluntary. The surrender must be spontaneous, showing the accused's interest to surrender unconditionally, either because he acknowledged his guilt or wished to save the authorities the trouble and expense of search and capture.

• Offsetting of mitigating and aggravating circumstances — Where a mitigating circumstance offsets an aggravating circumstance, and the penalty prescribed by law is composed of two indivisible penalties, the lesser penalty shall be imposed pursuant to Article 63(4) of the Revised Penal Code.

• Damages for loss of earning capacity — Documentary evidence is generally required for claims for loss of earning capacity. The two exceptions are: (1) if the deceased is self-employed earning less than the minimum wage under current labor laws, and judicial notice may be taken that no documentary evidence is available in the victim's line of work; or (2) if the deceased is employed as a daily wage worker earning less than the minimum wage.

• "Motive is not an essential element of a crime, and hence, need not be proved for purposes of conviction. Standing alone, the failure of the prosecution to adduce proof of the appellant's motive to kill Abiabi and injure Damuag would not exculpate him, especially since he was positively identified by at least two credible witnesses as one of the assailants." — This passage states the ratio decidendi on the non-essentiality of motive, a frequently cited principle in Philippine criminal law jurisprudence.

• "It is the natural reaction of victims of criminal violence to strive to see the looks and faces of their assailants and observe the manner in which the crime was committed. Most often, the face of the assailant and the body movements create lasting impression that cannot be easily erased from their memory." — This articulates the doctrine on the credibility of a surviving victim's identification of assailants, commonly invoked in cases involving eyewitness testimony.

• "For alibi to prosper, the requirements of time and distance must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed; he must also demonstrate by clear and convincing evidence that it was physically impossible for him to be at the scene of the crime during its commission." — This is the canonical formulation of the requisites of alibi, a standard bar-review proposition.

• "Although the offense was committed at night, nocturnity does not become a modifying factor when the place is adequately lighted, and thus could no longer insure the offender's immunity from identification or capture." — This defines the rule on nighttime as an aggravating circumstance, emphasizing the requirement of obscuridad rather than mere chronological onset.

• People vs. Aposaga, 108 SCRA 574 (1981) — Cited for the proposition that motive is not an essential element of a crime and need not be proved for conviction.
• People vs. Sanchez, et al., 367 SCRA 520 (2001) — Cited for the rule that findings of the trial court on the credibility of witnesses must be respected on appeal absent compelling reason to revise them.
• People vs. Dolar, 231 SCRA 414 (1994) — Cited for the doctrine that it is the natural reaction of victims of criminal violence to strive to see the faces of their assailants.
• People vs. Albarido, et al., 368 SCRA 194 (2001) — Cited for the requisites of alibi: proof that the accused was elsewhere and that it was physically impossible for him to be at the crime scene.
• People vs. Macaliag, 337 SCRA 502 (2000) — Cited for the rule that nocturnity is not aggravating when the crime scene is adequately lighted.
• People vs. Delmo, et al., G.R. Nos. 130078-82, October 4, 2002 — Cited for the proposition that abuse of superior strength is absorbed by treachery.
• People vs. Candado, et al., 84 SCRA 508 (1978) — Cited for the definition of aid of armed men as requiring that the armed men are accomplices who take part in a minor capacity.
• People vs. Zeta, G.R. Nos. 140901-02, May 9, 2002 — Cited for the requisites of voluntary surrender as a mitigating circumstance.
• People vs. Pajotal, 368 SCRA 674 (2001) — Cited for the two exceptions to the rule requiring documentary evidence for claims of loss of earning capacity.
• U.S. vs. Paraiso, 17 Phil. 142 — Cited for the principle that the essence of nighttime as an aggravating circumstance is the obscuridad afforded, not merely the chronological onset of nighttime.

• Article 248, Revised Penal Code, as amended by Republic Act No. 7659 — Defines and penalizes murder, prescribing the penalty of reclusion perpetua to death when committed with treachery, taking advantage of superior strength, with aid of armed men, or employing means to weaken the defense or insure impunity. Applied to qualify the killing of Abiabi as murder.
• Article 50, Revised Penal Code — Provides that the penalty next lower in degree than that prescribed for the consummated felony shall be imposed upon the principal in a frustrated felony. Applied to determine the penalty for frustrated murder.
• Article 63, Revised Penal Code — Governs application of indivisible penalties; paragraph (4) provides that when there is neither aggravating nor mitigating circumstance, the lesser penalty shall be applied. Applied to reduce the penalty for murder from death to reclusion perpetua after the mitigating circumstance of voluntary surrender offset the aggravating circumstance of use of motor vehicle.
• Article 14, paragraph 16, Revised Penal Code — Defines treachery (alevosia) as a qualifying/aggravating circumstance. Applied to qualify both crimes.
• Article 14(6), Revised Penal Code — Defines the aggravating circumstance of band (en cuadrilla), requiring more than three armed malefactors acting as principals. Not appreciated because only two of the accused carried firearms.
• Section 1, Act No. 4103 (Indeterminate Sentence Law), as amended by Act No. 4225 — Requires the court to impose an indeterminate sentence with a maximum within the range of the attending circumstances and a minimum within the range of the penalty lower than that prescribed by the Code. Applied to fix the indeterminate penalty for frustrated murder.
• Rule 119, Section 14, Rules on Criminal Procedure — Authorizes joint trial of multiple cases. Applied to try the murder and frustrated murder cases jointly.
• Rule 133, Rules of Court — Defines the standard of proof beyond reasonable doubt. Referenced in the trial court's acquittal of the three co-accused.

Davide, Jr., C.J., Bellosillo, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Tinga, JJ., concurred. Azcuna, J., was on leave.