SECOND DIVISION

G.R. No. 195021, March 15, 2017

NICOLAS VELASQUEZ AND VICTOR VELASQUEZ, Petitioners, v. PEOPLE OF THE PHILIPPINES,

Respondent.

DECISION

LEONEN, J.:

An accused who pleads a justifying circumstance under Article 11 of the Revised Penal Code1 admits to the
commission of acts, which would otherwise engender criminal liability. However, he asserts that he is
justified in committing the acts. In the process of proving a justifying circumstance, the accused risks
admitting the imputed acts, which may justify the existence of an offense were it not for the exculpating
facts. Conviction follows if the evidence for the accused fails to prove the existence of justifying
circumstances.

Through this Petition for Review on Certiorari 2 under Rule 45 of the Rules of Court, the accused petitioners
pray that the assailed March 17, 2010 Decision 3 and December 10, 2010 Resolution4 of the Court of
Appeals in CA-G.R. CR. No. 31333 be reversed and set aside, and that they be absolved of any criminal
liability.

The Court of Appeals' assailed rulings sustained the July 25, 2007 Decision5 of the Regional Trial Court,
Branch 41, Dagupan City, which found petitioners guilty beyond reasonable doubt of attempted murder.

In an Information, petitioners Nicolas Velasquez (Nicolas) and Victor Velasquez (Victor), along with four
(4) others - Felix Caballeda (Felix), Jojo Del Mundo (Jojo), Sonny Boy Velasquez (Sonny), and Ampong
Ocumen (Ampong) - were charged with attempted murder under Article 248, 6 in relation to Article 6,7 of
the Revised Penal Code, as follows:

That on May 24, 2003 in the evening at Brgy. Palua, Mangaldan, Pangasinan and within the jurisdiction of
this Honorable Court, the above named accused while armed with stones and wooden poles, conspiring,
confederating and mutually helping one another, with intent to kill, with treachery and abuse of superior
strength, did, then and there willfully, unlawfully and feloniously attack, maul and hit JESUS DEL MUNDO
inflicting upon him injuries in the vital parts of his body, the said accused having thus commenced a felony
directly by overt acts, but did not perform all the acts of execution which could have produced the crime
of Murder but nevertheless did not produce it by reason of some causes or accident other than their own
spontaneous desistance to his damage and prejudice.

Contrary to Article 248 in relation to Article 6 and 50 of the Revised Penal Code. 8
All accused, except Ampong, who remained at large, pleaded not guilty upon arraignment. 9 Trial then
ensued.10

According to the prosecution, on May 24, 2003, at about 10:00 p.m., the spouses Jesus and Ana Del
Mundo (Del Mundo Spouses) left their home to sleep in their nipa hut, which was about 100 meters
away.11 Arriving at the nipa hut, the Del Mundo Spouses saw Ampong and Nora Castillo (Nora) in the
midst of having sex.12 Aghast at what he perceived to be a defilement of his property, Jesus Del Mundo
(Jesus) shouted invectives at Ampong and Nora, who both scampered away. 13 Jesus decided to pursue
Ampong and Nora, while Ana Del Mundo (Ana) left to fetch their son, who was then elsewhere.14 Jesus
went to the house of Ampong's aunt, but neither Ampong nor Nora was there. 15 He began making his way
back home when he was blocked by Ampong and his fellow accused. 16

Without provocation, petitioner Nicolas hit the left side of Jesus' forehead with a stone. Petitioner Victor
also hit Jesus' left eyebrow with a stone.17 Accused Felix did the same, hitting Jesus above his left ear. 18
Accused Sonny struck Jesus with a bamboo, hitting him at the back, below his right shoulder.19 Ampong
punched Jesus on his left cheek. The accused then left Jesus on the ground, bloodied. Jesus crawled and
hid behind blades of grass, fearing that the accused might return. He then got up and staggered his way
back to their house.20

Jesus testified on his own ordeal. In support of his version of the events, the prosecution also presented
the testimony of Maria Teresita Viado (Maria Teresita). Maria Teresita was initially approached by Jesus'
wife, Ana, when Jesus failed to immediately return home.21 She and Ana embarked on a search for Jesus
but were separated.22 At the sound of a man being beaten, she hid behind some bamboos. 23 From that
vantage point, she saw the accused mauling Jesus. 24 The prosecution noted that about four (4) or five (5)
meters away was a lamp post, which illuminated the scene. 25

At the Del Mundo Spouses' residence, Maria Teresita recounted to them what she had witnessed (Jesus
had managed to return home by then).26 Ana and Maria Teresita then brought Jesus to Barangay Captain
Pilita Villanueva, who assisted them in bringing Jesus to the hospital. 27

After undergoing an x-ray examination, Jesus was found to have sustained a crack in his skull. 28 Dr. Jose
D. De Guzman (Dr. De Guzman) issued a medico-legal certificate indicating the following
findings:chanRoblesvirtualLawlibrary
x.x. Positive Alcoholic Breath
3 cms lacerated wound fronto-parietal area left
1 cm lacerated wound frontal area left
Abrasion back left multi linear approximately 20 cm
Abrasion shoulder left, confluent 4x10 cm
Depressed skull fracture parietal area left.

x.x.29
Dr. De Guzman noted that Jesus' injuries required medical attention for four (4) to six (6) weeks. 30 Jesus
was also advised to undergo surgery.31 He was, however, unable to avail of the required medical
procedure due to shortage of funds.32

The defense offered a different version of events.

According to the accused, in the evening of May 24, 2003, petitioner Nicolas was roused in his sleep by his
wife, Mercedes Velasquez (Mercedes), as the nearby house of petitioner Victor was being stoned. 33

Nicolas made his way to Victor's place, where he saw Jesus hacking Victor's door. Several neighbors - the
other accused - allegedly tried to pacify Jesus.34 Jesus, who was supposedly inebriated, vented his ire
upon Nicolas and the other accused, as well as on Mercedes. 35 The accused thus responded and countered
Jesus' attacks, leading to his injuries.36

In its July 25, 2007 Decision,37 the Regional Trial Court, Branch 41, Dagupan City found petitioners and
Felix Caballeda guilty beyond reasonable doubt of attempted murder. 38 The court also found Sonny Boy
Velasquez guilty beyond reasonable doubt of less serious physical injuries. 39 He was found to have hit
Jesus on the back with a bamboo rod. Jojo Del Mundo was acquitted. 40 The case was archived with respect
to Ampong, as he remained at large.41

The dispositive portion of its Decision read:chanRoblesvirtualLawlibrary

WHEREFORE, premises considered, judgment is hereby rendered finding accused NICOLAS VELASQUEZ,
VICTOR VELASQUEZ and FELIX CABALLEDA guilty beyond reasonable doubt of the crime of Attempted
Murder defined and penalized under Article 248 in relation to Articles 6, paragraph 3 and 51 of the Revised
Penal Code, and pursuant to the law, sentences each of them to suffer on (sic) indeterminate penalty of
four (4) years and one (1) day of Arrested (sic) Mayor in its maximum period as minimum to eight (8)
years of Prison (sic) Correctional (sic) in its maximum period to Prison (sic) Mayor in its medium period as
maximum and to pay proportionately to private complainant Jesus del Mundo the amount of Php55,000.00
as exemplary damages, and to pay the cost of suit.

The Court likewise finds the accused SONNY BOY VELASQUEZ [guilty] beyond reasonable doubt of the
[crime] of Less Serious Physical Injuries defined and penalized under Article 265 of the Revised Penal
Code and pursuant thereto, he is hereby sentenced to suffer the penalty of Arresto Mayor on one (1)
month and one (1) day to six (6) months.

Accused JOJO DEL MUNDO is hereby acquitted on the ground of absence of evidence.

With respect to accused AMPONG OCUMEN, the case against him is archived without prejudice to its
revival as soon as he is arrested and brought to the jurisdiction of this Court.42
Petitioners and Felix Caballeda filed a motion for reconsideration, which the Regional Trial Court denied. 43

On petitioners' and Caballeda's appeal, the Court of Appeals found that petitioners and Caballeda were
only liable for serious physical injuries because "first, intent to kill was not attendant inasmuch as the
accused-appellants, despite their superiority in numbers and strength, left the victim alive and, second,
none of [the] injuries or wounds inflicted upon the victim was fatal."44 The Court of Appeals thus modified
the sentence imposed on petitioners and Caballeda.

The dispositive portion of its assailed March 17, 2010 Decision45 read:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the July 25, 2007 Decision of Branch 41, Regional Trial Court of
Dagupan City is hereby MODIFIED. Instead, accused-appellants are found guilty of Serious Physical
Injuries and each of them is sentenced to suffer the penalty of imprisonment of six (6) months of arresto
mayor as minimum to four (4) years and two (2) months of prision correccional as maximum.

SO ORDERED.46 (Emphasis in the original)

Following the denial of their Motion for Reconsideration, petitioners filed the present Petition.47 They insist
on their version of events, particularly on how they and their co-accused allegedly merely acted in
response to Jesus Del Mundo's aggressive behavior.

For resolution is the issue of whether petitioners may be held criminally liable for the physical harm
inflicted on Jesus Del Mundo. More specifically, this Court is asked to determine whether there was
sufficient evidence: first, to prove that justifying circumstances existed, and second, to convict the
petitioners.

Petitioners' defense centers on their claim that they acted in defense of themselves, and also in defense of
Mercedes, Nicolas' wife and Victor's mother. Thus, they invoke the first and second justifying
circumstances under Article 11 of the Revised Penal Code:chanRoblesvirtualLawlibrary
ARTICLE 11. Justifying Circumstances. — The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants,
or legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the
same degrees, and those by consanguinity within the fourth civil degree, provided that the
first and second requisites prescribed in the next preceding circumstance are present, and
the further requisite, in case the provocation was given by the person attacked, that the one
making defense had no part therein.

A person invoking self-defense (or defense of a relative) admits to having inflicted harm upon another
person - a potential criminal act under Title Eight (Crimes Against Persons) of the Revised Penal Code.
However, he or she makes the additional, defensive contention that even as he or she may have inflicted
harm, he or she nevertheless incurred no criminal liability as the looming danger upon his or her own
person (or that of his or her relative) justified the infliction of protective harm to an erstwhile aggressor.

The accused's admission enables the prosecution to dispense with discharging its burden of proving that
the accused performed acts, which would otherwise be the basis of criminal liability. All that remains to be
established is whether the accused were justified in acting as he or she did. To this end, the accused's
case must rise on its own merits:chanRoblesvirtualLawlibrary
It is settled that when an accused admits [harming] the victim but invokes self-defense to escape criminal
liability, the accused assumes the burden to establish his plea by credible, clear and convincing evidence;
otherwise, conviction would follow from his admission that he [harmed] the victim. Self-defense cannot be
justifiably appreciated when uncorroborated by independent and competent evidence or when it is
extremely doubtful by itself. Indeed, in invoking self-defense, the burden of evidence is shifted and the
accused claiming self-defense must rely on the strength of his own evidence and not on the weakness of
the prosecution.48
To successfully invoke self-defense, an accused must establish: "(1) unlawful aggression on the part of
the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression; and (3)
lack of sufficient provocation on the part of the person resorting to self-defense."49 Defense of a relative
under Article 11 (2) of the Revised Penal Code requires the same first two (2) requisites as self-defense
and, in lieu of the third "in case the provocation was given by the person attacked, that the one making
the defense had no part therein."50

The first requisite - unlawful aggression - is the condition sine qua non of self-defense and defense of a
relative:chanRoblesvirtualLawlibrary
At the heart of the claim of self-defense is the presence of an unlawful aggression committed against
appellant. Without unlawful aggression, self-defense will not have a leg to stand on and this justifying
circumstance cannot and will not be appreciated, even if the other elements are present. Unlawful
aggression refers to an attack amounting to actual or imminent threat to the life and limb of the person
claiming self-defense.51
The second requisite - reasonable necessity of the means employed to prevent or repel the aggression -
requires a reasonable proportionality between the unlawful aggression and the defensive response: "[t]he
means employed by the person invoking self-defense contemplates a rational equivalence between the
means of attack and the defense."52 This is a matter that depends on the
circumstances:chanRoblesvirtualLawlibrary
Reasonable necessity of the means employed does not imply material commensurability between the
means of attack and defense. What the law requires is rational equivalence, in the consideration of which
will enter as principal factors the emergency, the imminent danger to which the person attacked is
exposed, and the instinct, more than the reason, that moves or impels the defense, and the
proportionateness thereof does not depend upon the harm done, but rests upon the imminent danger of
such injury . . . As WE stated in the case of People vs. Lara, in emergencies of this kind, human nature
does not act upon processes of formal reason but in obedience to the instinct of self-preservation; and
when it is apparent that a person has reasonably acted upon this instinct, it is the duty of the courts to
sanction the act and hold the act irresponsible in law for the consequences.53 (Citations omitted)
The third requisite - lack of sufficient provocation - requires the person mounting a defense to be
reasonably blameless. He or she must not have antagonized or incited the attacker into launching an
assault. This also requires a consideration of proportionality. As explained in People v. Boholst-Caballero,54
"[p]rovocation is sufficient when it is proportionate to the aggression, that is, adequate enough to impel
one to attack the person claiming self-defense."55

II

We find petitioners' claims of self-defense and defense of their relative, Mercedes, to be sorely wanting.

Petitioners' entire defense rests on proof that it was Jesus who initiated an assault by barging into the
premises of petitioners' residences, hacking Victor's door, and threatening physical harm upon petitioners
and their companions. That is, that unlawful aggression originated from Jesus.

Contrary to what a successful averment of self-defense or defense of a relative requires, petitioners

offered nothing more than a self-serving, uncorroborated claim that Jesus appeared out of nowhere to go
berserk in the vicinity of their homes. They failed to present independent and credible proof to back up
their assertions. The Regional Trial Court noted that it was highly dubious that Jesus would go all the way
to petitioners' residences to initiate an attack for no apparent reason. 56

The remainder of petitioners' recollection of events strains credulity. They claim that Jesus launched an
assault despite the presence of at least seven (7) antagonists: petitioners, Mercedes, and the four (4)
other accused. They further assert that Jesus persisted on his assault despite being outnumbered, and
also despite their and their co-accused's bodily efforts to restrain Jesus. His persistence was supposedly so
likely to harm them that, to neutralize him, they had no other recourse but to hit him on the head with
stones for at least three (3) times, and to hit him on the back with a bamboo rod, aside from dealing him
with less severe blows.57

As the Regional Trial Court noted, however:chanRoblesvirtualLawlibrary

The Court takes judicial notice of (the) big difference in the physical built of the private complainant and
accused Victor Velasquez, Sonny Boy Velasquez, Felix Caballeda and Jojo del Mundo, private complainant
is shorter in height and of smaller built than all the accused. The said accused could have had easily held
the private complainant, who was heavily drunk as they claim, and disarmed him without the need of
hitting him.58
The injuries which Jesus were reported to have sustained speak volumes:chanRoblesvirtualLawlibrary
3 cms lacerated wound fronto-parietal area left
1 cm lacerated wound frontal area left
Abrasion back left multi linear approximately 20 cm
Abrasion shoulder left, confluent 4x10 cm
Depressed skull fracture parietal area left.59
Even if it were to be granted that Jesus was the initial aggressor, the beating dealt to him by petitioners
and their co-accused was still glaringly in excess of what would have sufficed to neutralize him. It was far
from a reasonably necessary means to repel his supposed aggression. Petitioners thereby fail in satisfying
the second requisite of self-defense and of defense of a relative.

III

In addition to their tale of self-defense, petitioners insist that the testimony of Maria Teresita is not worthy
of trust because she parted ways with Ana while searching for Jesus. 60 They characterize Maria Teresita as
the prosecution's "lone eyewitness."61 They make it appear that its entire case hinges on her. Thus, they
theorize that with the shattering of her credibility comes the complete and utter ruin of the prosecution's
case.62 Petitioners claim that Maria Teresita is the prosecution's lone eyewitness at the same time that
they aclmowledge Jesus' testimony, which they dismissed as laden with inconsistencies. 63

These contentions no longer merit consideration.

Petitioners' averment of justifying circumstances was dispensed with the need for even passing upon their
assertions against Maria Teresita's and Jesus' testimonies. Upon their mere invocation of self-defense and
defense of a relative, they relieved the prosecution of its burden of proving the acts constitutive of the
offense. They took upon themselves the burden of establishing their innocence, and cast their lot on their
capacity to prove their own affirmative allegations. Unfortunately for them, they failed.

Even if we were to extend them a measure of consideration, their contentions fail to impress.

Petitioners' primordial characterization of Maria Teresita as the "lone eyewitness," upon whose testimony
the prosecution's case was to rise or fall, is plainly erroneous. Apart from her, Jesus testified about his
own experience of being mauled by petitioners and their co-accused. Maria Teresita's testimony was only
in support of what Jesus recounted.

Moreover, we fail to see how the mere fact of Maria Teresita's having parted ways with Ana while
searching for Jesus diminishes her credibility. No extraordinary explanation is necessary for this. Their
having proceeded separately may be accounted for simply by the wisdom of how independent searches
enabled them to cover more ground in less time.
Regarding Jesus' recollection of events, petitioners' contention centers on Jesus' supposedly flawed
recollection of who among the six (6) accused dealt him, which specific blow, and using which specific
weapon.64 These contentions are too trivial to even warrant an independent, point by point audit by this
Court.

Jurisprudence is replete with clarifications that a witness' recollection of crime need not be foolproof:
"Witnesses cannot be expected to recollect with exactitude every minute detail of an event. This is
especially true when the witnesses testify as to facts which transpired in rapid succession, attended by
flurry and excitement."65 This is especially true of a victim's recollection of his or her own harrowing
ordeal. One who has undergone a horrifying and traumatic experience "cannot be expected to
mechanically keep and then give an accurate account"66 of every minutiae.

Certainly, Jesus' supposed inconsistencies on the intricacies of who struck him which specific blow can be
forgiven. The merit of Jesus' testimony does not depend on whether he has an extraordinary memory
despite being hit on the head multiple times. Rather, it is in his credible narration of his entire ordeal, and
how petitioners and their co-accused were its authors. On this, his testimony was unequivocal.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR. No. 31333 is
AFFIRMED.

SO ORDERED.
 THIRD DIVISION

G.R. No. 227421, July 23, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RODOLFO OLARBE Y BALIHANGO, Accused-

Appellants.

DECISION

BERSAMIN, J.:

The accused who shows by clear and convincing evidence that the death of the victim arose from the need
for self-preservation in the face of the victim's deadly unlawful aggression, and there was a reasonable
necessity of the means employed to prevent or repel the same, is entitled to acquittal on the ground of
self-defense in the absence of any indication of his having provoked such unlawful aggression.

In self-defense and defense of stranger, the circumstances as the accused perceived them at the time of
the incident, not as others perceived them, should be the bases for determining the merits of the plea.

The Case

For the killing of the late Romeo Arca, accused Rodolfo Olarbe y Balihango (Olarbe) was charged with and
convicted of murder by the Regional Trial Court (RTC), Branch 27, in Santa Cruz, Laguna through the
judgment rendered on August 13, 2014 in Criminal Case No. SC-12274.1

On appeal, the Court of Appeals (CA) affirmed the conviction on March 22, 2016. 2

Antecedents

The information charged Olarbe with murder, viz.:

That on or about May 7, 2006 at about 12:00 o'clock midnight, at Sitio Pananim, Municipality of Luisiana,
Province of Laguna and within the jurisdiction of this Honorable Court, the above-named accused, with
intent to kill and with evident premeditation and treachery and with the use of a rifle (airgun) converted to
caliber .22 and a bolo, did then and there, willfully, unlawfully and feloniously shoot and hack one ROMEO
ARCA with the said weapons, thereby inflicting upon him gunshot wound and hacking wounds on the
different parts of his body which resulted to (sic) his instantaneous death, to the damage and. prejudice of
his surviving heirs.

CONTRARY TO LAW.3
The CA recounted the factual and procedural background of the case in its assailed decision thusly:
Arraigned, OLARBE initially pled not guilty to the crime charged. Upon re-arraignment, OLARBE pleaded
guilty but subsequently withdrew his plea of guilt and manifested for the presentation of his defense.
Thereafter, trial on the merits ensued.

The prosecution's diegesis of the case is synthesized as follows:

On 8 May 2006 at around 12:30 o'clock midnight, OLARBE voluntarily surrendered to police officers SPO2
Vivencio Aliazas, PO3 Ricardo Cruz and PO1 William Cortez at the Police Station of Luisiana, Laguna.
OLARBE informed them that he happened to have killed Romeo Arca (Arca) in Sitio Pananim, Luisiana,
Laguna. Forthwith, OLARBE was booked, arrested and detained at the police station. Thereafter, the police
officers proceeded to the crime scene and found the lifeless body of Arca with several wounds and the bolo
used by OLARBE in killing him. The Death Certificate revealed that Arca's antecedent cause of death was
gunshot wounds and his immediate cause of death was hacked wounds.

For his part, OLARBE invoked self-defense and avowed -

On the fateful incident, he and his wife Juliet were sleeping in their house in Barangay San Antonio, Sitio
Pananim, Luisiana, Laguna. Suddenly they were awakened by the sound of a gunshot and shouting from
Arca who appeared to be drunk. Arca was holding a rifle (an airgun converted to a calibre .22) and
shouted "mga putang ina ninyo, pagpapatayin ko kayo." Then, Arca forcibly entered their house and
aimed the gun at them. OLARBE immediately grabbed the gun from him and they grappled for its
possession. OLARBE managed to wrest the gun away from Arca. In a jiff, OLARBE shot Arca causing the
latter to lean sideward ("napahilig"). Nevertheless, Arca managed to get his bolo from his waist and
continued to attack them. OLARBE grabbed the bolo and in their struggle for its possession, they reached
the outer portion of the house. OLARBE was able to wrestle the bolo and instantly, he hacked Arca. After
the killing incident, OLARBE voluntarily surrendered to the police authorities.4
Judgment of the RTC

Rejecting Olarbe's pleas of self-defense and defense of stranger, the RTC pronounced him guilty of murder
as charged. It observed that the initial unlawful aggression by Arca had ceased when Olarbe shot him in
the head and caused him to "lean sideward." It disbelieved Olarbe's insistence that Arca had still been
able to grab his bolo and assault Olarbe's common-law spouse therewith for being implausible considering
that Arca had by then been hit in the head. It held that Olarbe's testimony that he had wrested the bolo
from Arca after grappling for its control, and had then hacked him with it was improbable and pot in
accord with the natural order of things because. the injury in the head had already weakened and subdued
Arca; and that the killing was treacherous because Olarbe had hacked the then unarmed and weakened
victim.

The dispositive portion of the judgment of the RTC reads:

WHEREFORE, this court finds that herein accused was unable to prove the justifying circumstance of self-
defense by clear, satisfactory and convincing evidence that excludes any vestige of criminal aggression on
his part and further, he employed treachery when he killed the victim Romeo Arca. Thus, this Court finds
the accused Rodolfo Olarbe y Balihango GUILTY of "Murder".

On the other hand, finding that herein accused voluntarily surrendered to the police authorities of the
Mrn1icipal Police Station of Luisiana, Laguna immediately after killing Romeo Arca, he is entitled to the
said mitigating circumstance. The accused Rodolfo Olarbe y Balihango is thereby hereby sentenced to the
minimum penalty of imprisonment for the crime of murder, which is a period of TWENTY (20) YEARS AND
ONE (1) DAY TO RECLUSION PERPETUA.

The accused Rodolfo Olarbe y Balihango is also hereby ordered to pay to the heirs of Romeo Arca the
following:

Civil indemnity in the amount of P75,000.00;

Moral damages in the amount of P50,000.00;

Actual damages in the following amounts - P1,000.00 as expenses for church services from the Iglesia
Filipina Independiente; the amount of P1,200.00 for expenses incurred in Jeralyn's Flower Shop; the
amount of P20,000.00 paid to Mancenido Funeral Service; fees paid to the Municipal Treasurer of Luisiana
in the amount of P150.00; and, the amount of P15,000.00 paid for the burial lot; and,

Exemplary damages in the amount of P30,000.00.

SO ORDERED.5
Decision of the CA

On appeal, the CA affirmed the conviction of Olarbe because the factual findings of the RTC were
consistent with the evidence on record and accorded with human experience; and because treachery had
attended the killing. The fallo of the assailed decision reads:
WHEREFORE, the Appeal is hereby DENIED. The Judgment dated 13 August 2014 of the Regional Trial
Court, Fourth Judicial Region, Santa Cruz, Laguna, Branch 27, in Criminal Case No. SC-12274, is
AFFIRMED with MODIFICATION in that accused-appellant Rodolfo Olarbe is ORDERED to pay
temperate damages in the amount of P25,000.00. He is further ORDERED to pay interest at the rate of
six percent (6%) per annum on the civil indemnity, moral, exemplary and temperate damages awarded
from the finality of this judgment until fully paid.
SO ORDERED.6
Hence, this appeal.

The accused and the Office of the Solicitor General (OSG) have separately manifested that they would no
longer be filing supplemental briefs in this appeal; and prayed that their respective briefs filed in the CA
should be considered.7

Issue

In his appellant's brief filed in the CA, Olarbe submitted that it was erroneous to reject his pleas of self-
defense and defense of stranger because he had killed Arca to save himself and his common-law wife from
the latter's unlawful aggression; that his use of the victim's gun and bolo to repel or stop the unlawful
aggression was necessary and reasonable; and that the killing was consequently legally justified.

The OSG countered that it was Olarbe who had mounted the unlawful aggression against Arca; and that
the latter had been defenseless when Olarbe hacked him to death.

Ruling of the Court

The appeal has merit.

An accused who pleads any justifying circumstance in Article 11 of the Revised Penal Code admits to the
commission of acts that show the commission of a crime. It thus becomes his burden to prove the
justifying circumstance with clear and convincing evidence; otherwise, his conviction for the crime charged
follows.8

In order for Olarbe to exonerate himself on the ground of self-defense under Article 11, paragraph 1,9 of
the Revised Penal Code, he must establish the following facts, namely: (1) unlawful aggression on the part
of the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression; and
(3) lack of sufficient provocation on the part of the person resorting to self-defense.

Olarbe also invoked defense of stranger under Article 11, paragraph 3, 10 of the Revised Penal Code
because Arca was likewise attacking his common-law spouse. Defense of stranger requires clear and
convincing evidence to prove the following, to wit: (1) unlawful aggression by the victim; (2) reasonable
necessity of the means to prevent or repel it; and (3) the person defending be not induced by revenge,
resentment or other evil motive.11

The indispensable requisite for either of these justifying circumstances is that the victim must have
mounted an unlawful aggression against the accused or the stranger. Without such unlawful aggression,
the accused is not entitled to the justifying circumstance. 12 The essence of the unlawful aggression
indispensable in self-defense or defense of stranger has been fully discussed in People v. Nugas,13 thus:
Unlawful aggression on the part of the victim is the primordial element of the justifying circumstance of
self-defense. Without unlawful aggression, there can be no justified killing in defense of oneself. The test
for the presence of unlawful aggression under the circumstances is whether the aggression
from the victim put in real peril the life or personal safety of the person defending himself; the
peril must not be an imagined or imaginary threat. Accordingly, the accused must establish the
concurrence of three elements of unlawful aggression, namely: (a) there must be a physical or material
attack or assault; (b) the attack or assault must be actual, or, at least, imminent; and (c) the attack or
assault must be unlawful.

Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent unlawful
aggression. Actual or material unlawful aggression means an attack with physical force or with a weapon,
an offensive act that positively determines the intent of the aggressor to cause the injury. Imminent
unlawful aggression means an attack that is impending or at the point of happening; it must not consist in
a mere threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong
(like aiming a revolver at another with intent to shoot or opening a knife and making a motion as if to
attack). Imminent unlawful aggression must not be a mere threatening attitude of the victim, such as
pressing his right hand to his hip where a revolver was holstered, accompanied by an angry countenance,
or like aiming to throw a pot.
Let us now revisit the events of that fateful night of May 7, 2006. Arca, armed with the rifle (described as
an airgun converted into a caliber .22) and the bolo, we to the house of Olarbe towards midnight. The
latter and his household re already slumbering, but were roused from bed because Arca fired his gun and
was loudly shouting, Mga putang ina ninyo, pagpapatayin ko kayo. Thereafter, Arca forcibly entered
Olarbe's house. Olarbe managed to the gun of Arca, and they struggled for control of it. Upon wresting the
gun from Arca, Olarbe fired at him, causing him to totter. But Arca next took out the bolo from his waist
and charged at Olarbe's common-law spouse. This forced Olarbe to fight for possession of the bolo, and
upon seizing the bolo, he hacked Arca with it.

Arca's death was certified to have been due to the gunshot on the head and hacking wounds. The CA
noted the following injuries, aside from the gunshot wound in the head, namely:
• Lacerated wound on the forehead;
• Lacerated wound, front rib area;
• Lacerated wound on the left upper quadrant;
• Lacerated wound on the left lower quadrant;
• Lacerated wound on the occipital area
• Two (2) hacking wounds posterior of neck; and
• Hacking wound on lumbar area.14
Only Olarbe's account of the incident existed in the records, but instead of giving weight to the account,
the RTC and the CA rejected his pleas of self-defense and defense of stranger based on their common
holding that Arca had been weakened from being hit on the head; and concluded that consequently Arca
could not have charged with his bolo.

The CA's rejection of Olarbe's pleas of self-defense and defense of stranger was unwarranted.

To start with, there was no credible showing that the shot to the head had rendered Arca too weak to
draw the bolo and to carry on with his aggression in the manner described by Olarbe. The conclusion of
the RTC and the CA thereon was obviously speculative. Secondly, the State did not demonstrate that the
shot from the airgun converted to .22 caliber fired at close range sufficed to disable Arca from further
attacking with his bolo. Without such demonstration, the RTC and the CA clearly indulged in pure
speculation. Thirdly, nothing in the record indicated Arca's physical condition at the time of the incident
How could the CA then reliably conclude that he could not have mounted the bolo assault? And, lastly, to
rule out any further aggression by Arca with his bolo after the shot in the he,ad was again speculative. On
the other hand, our substantial judicial experience instructs that an armed person boldly seeking to
assault others - like Arca - would have enough adrenaline to enable him to persist on his assault despite
sustaining a wound that might otherwise be disabling.

To us, Olarbe's account of what did happen on that fateful night was highly plausible. At the minimum, the
details and sequence of the events therein described conformed to human experience and the natural
course of things. Armed with both the gun and the bolo, Acra not only disturbed Olarbe's peace but
physically invaded the sanctity of latter's home at midnight. Given that the aggression by Arca was
unprovoked on the part of Olarbe, and with no other person disputing the latter's account, we should
easily see and understand why Olarbe would feel that his and his common law spouse's lives had been put
in extreme peril.

In addition, Olarbe's conduct following the killing of Arca - of voluntarily surrendering himself to the police
authorities immediately after the killing (i.e., at around 12:30 o'clock in the early morning of May 8,
2006), and reporting his participation in the killing of Arca to the police authorities - bolstered his pleas of
having acted in legitimate self-defense and legitimate defense of his common-law spouse. Such conduct
manifested innocence.

To disbelieve Olarbe's account is to give primacy to surmise and speculation. That is not how courts of law
whose bounden and sworn duty is to dispense justice should sit in judgment in a criminal trial. Judges
should assiduously sift the records, carefully analyze the evidence, and reach conclusions that are natural
and reasonable.
Did Olarbe clearly and convincingly establish the justifying circumstances invoked?

We find that Arca committed continuous and persistent unlawful aggression against Olarbe and his
common-law spouse that lasted from the moment he forcibly barged into the house and brandished his
gun until he assaulted Olarbe's common-law spouse with the bolo. Such armed assault was not a mere
threatening act. Olarbe was justified in believing his and his common-law spouse's lives to be in extreme
danger from Arca who had just fired his gun in anger outside their home and whose threats to kill could
not be considered idle in the light of his having forced himself upon their home. The imminent threat to
life was positively strong enough to induce Olarbe to act promptly to repel the unlawful and unprovoked
aggression. For Olarbe to hesitate to act as he had done would have cost him his own life. Arca's being
dispossessed of his gun did not terminate the aggression, for, although he had been hit on the head, he
quickly reached for the bolo and turned his assault towards Olarbe's common-law spouse. Olarbe was
again forced to struggle for control of the bolo. The swiftness of the action heightened Olarbe's sense that
the danger to their lives was present and imminent.

In judging pleas of self-defense and defense of stranger, the courts should not demand that the accused
conduct himself with the poise of a person not under imminent threat of fatal harm. He had no time to
reflect and to reason out his responses. He had to be quick, and his responses should be commensurate to
the imminent harm. This is the only way to judge him, for the law of nature - the foundation of the
privilege to use all reasonable means to repel an aggression that endangers one's own life and the lives of
others - did not require him to use unerring judgment when he had the reasonable grounds to believe
himself in apparent danger of losing his life or suffering great bodily injury.15 The test is whether his
subjective belief as to the imminence and seriousness of the danger was reasonable or not,16 and the
reasonableness of his belief must be viewed from his standpoint at the time he acted. 17 The right of a
person to take life in self-defense arises from his belief in the necessity for doing so; and his belief and the
reasonableness thereof are to be judged in the light of the circumstances as they then appeared to him,
not in the light of circumstances as they would appear to others or based on the belief that others may or
might entertain as to the nature and imminence of the danger and the necessity to kill.18

The remaining elements of the justifying circumstances were likewise established.

Reasonable necessity of the means employed to repel the unlawful aggression does not mean absolute
necessity. It must be assumed that one who is assaulted cannot have sufficient tranquility of mind to
think, calculate and make comparisons that can easily be made in the calmness of reason. The law
requires rational necessity, not indispensable need. In each particular case, it is necessary to judge the
relative necessity, whether more or less imperative, in accordance with the rules of rational logic. The
accused may be given the benefit of any reasonable doubt as to whether or not he employed rational
means to repel the aggression.19

In determining the reasonable necessity of the means employed, the courts may also look .at and
consider the number of wounds inflicted. A large number of wounds inflicted on the victim can indicate a
determined effort on the part of the accused to kill the victim and may belie the reasonableness of the
means adopted to prevent or repel an unlawful act of an aggressor. 20 Here, however, although Arca
sustained several wounds, the majority of the wounds were lacerations whose nature and extent were not
explained. The lack of explanations has denied us the means to fairly adjudge the reasonableness of the
means adopted by Olarbe to prevent or repel Arca's unlawful aggression. Accordingly, to rule out
reasonable necessity of the means adopted by Olarbe solely on the basis of the number of wounds would
be unfair to him. In any event, we have to mention that the rule of reasonable necessity is not ironclad in
its application, but is dependent upon the established circumstances of each particular case.

The courts ought to remember that a person who is assaulted has neither the time nor the sufficient
tranquility of mind to think, calculate and choose the weapon to be used. For, in emergencies of this kind,
human nature does not act upon processes of formal reason but in obedience to the instinct of self-
preservation; and when it is apparent that a person has reasonably acted upon this instinct, it is the duty
of the courts to hold the actor not responsible in law for the consequences. 21 Verily, the law requires
rational equivalence, not material commensurability, viz.:
It is settled that reasonable necessity of the means employed does not imply material commensurability
between the means of attack and defense. What the law requires is rational equivalence, in the
consideration of which will enter the principal factors the emergency, the imminent danger to which
the person attacked is exposed, and the instinct, more than the reason, that moves or impels
the defense, and the proportionateness thereof does not depend upon the harm done, but rests
upon the imminent danger of such injury.22 [Bold underscoring supplied for emphasis]
Lastly, the absence of any showing that Olarbe had provoked Arca, or that he had been induced by
revenge, resentment or other evil motive has been equally palpable. We deem to be established,
therefore, that the third elements of the justifying circumstances of self-defense and defense of stranger
were present.

With Olarbe being entitled to the justifying circumstances of self-defense and defense of a stranger, his
acquittal follows.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on March 22, 2016 in
CA-G.R. CR-HC No. 07112; ACQUITS accused RODOLFO OLARBE y BALIHANGO on the grounds of
SELF-DEFENSE and DEFENSE OF A STRANGER; DECLARES him NOT CIVILLY LIABLE to the heirs of
the late Romeo Arca; and DIRECTS his IMMEDIATE RELEASE FROM CONFINEMENT unless he is
otherwise legally confined for another cause.

Let a copy of this decision be sent to the Director, Bureau of Corrections, in Muntinlupa City for immediate
implementation. The Director of the Bureau of Corrections is DIRECTED TO REPORT the action taken to
this Court within five days from receipt of this decision.

SO ORDERED.
 EN BANC

G.R. No. 174483 March 31, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RAMON REGALARIO, MARCIANO REGALARIO, SOTERO REGALARIO, BIENVENIDO REGALARIO
and NOEL REGALARIO, Accused-Appellants.

DECISION

LEONARDO-DE CASTRO, J.:

For automatic review is the decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 01556 which affirmed
with modification, an earlier decision 2 of the Regional Trial Court of Ligao, Albay, Branch 13 in Criminal
Case No. 3613, finding accused-appellants Ramon, Marciano, Sotero, Bienvenido and Noel, all surnamed
Regalario guilty of murder and sentencing them to suffer the penalty of reclusion perpetua and to
indemnify jointly and severally the heirs of the victim in the amount of ₱50,000.00, and another sum of
₱50,000.00 as moral damages and to pay the costs of the proceedings.

In the court of origin, accused-appellants Ramon, Marciano, Sotero, Bienvenido and Noel were originally
charged with Homicide. However, after reinvestigation of the case, the Panel of Prosecutors of the
Department of Justice, Legaspi City, consisting of State Prosecutors Romulo SJ Tolentino, Mary May B. De
Leoz and Elmer M. Lanuzo filed an amended information 3 charging the accused-appellants with murder,
committed as follows:

That on February 22, 1997 at about 11:00 in the evening, at Brgy. Natasan, Municipality of Libon,
province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and helping one another, with intent to kill, did then and there willfully,
unlawfully and feloniously with cruelty, treachery, abuse of superior strength, nighttime attack, assault,
strike and hit ROLANDO SEVILLA with wooden clubs (bahi) used as their night sticks, hitting the latter at
the different parts of his body and tying down his hands and feet with a rope, thereby inflicting upon the
latter serious and mortal wounds which directly caused his death, to the damage and prejudice of his legal
heirs.

ACTS CONTRARY TO LAW.

On October 9, 1998, accused-appellants, duly assisted by their counsel, entered a plea of "not guilty" to
the offense charged.4 Thereafter, trial ensued.

The prosecution presented the following as its witnesses: Zaldy Siglos, Nancy Sara, Ryan Sara, Armando
Cabais Poblete, Ronnie Siglos, Cynthia Sevilla, Norma Torres, Policeman Jose Gregorio, Cenen Talagtag,
Cesar Sazon and Dr. Mario Cerillo, while Antonio Relato and Nicanor Regonia testified on rebuttal. Nancy
Sara, Cynthia Sevilla and Ryan Sara were presented for a second time also as rebuttal witnesses.

On their part, accused-appellants took the witness stand. All raised the defense of denial except for
Ramon who admitted the act charged but claimed self-defense. To corroborate their defense, Jose Poblete
and Adonis Velasco were presented. The defense also presented Senior Police Officer 2 (SPO2) Jimmy
Colisao, Harold Reolo, Ma. Julieta Razonable, and Dr. Leopoldo Barrosa II.

On August 24, 2000, the trial court rendered its decision 5 giving full faith and credit to the prosecution’s
evidence. It ruled out accused-appellant Ramon Regalario’s claim of self defense, and held that there was
conspiracy among the accused-appellants in the commission of the crime as shown in the manner in which
all of them inflicted the wounds on the victim’s body. It further ruled that the killing was qualified to
murder by abuse of superior strength and by their scoffing at the body of the victim. It also appreciated
the presence of the mitigating circumstance of voluntary surrender. The pertinent dispositive portion of
the said decision reads:
WHEREFORE, judgment is hereby rendered finding Ramon, Sotero, Bienvenido, Marciano and Noel, all
surnamed Regalario, guilty beyond reasonable doubt of the crime of Murder under Par. 1, of Art. 248 of
the Revised Penal Code, as amended, with the aggravating circumstance of scoffing at the corpse of the
victim. However, accused are entitled to the benefit of the mitigating circumstance of voluntary surrender
which offset the aggravating circumstance of scoffing at his corpse, hence, are hereby sentenced to suffer
the Penalty of Reclusion Perpetua together with the accessory penalties provided for by law.

The accused are hereby ordered to indemnify jointly and severally the heirs of the late Rolando Sevilla the
amount of ₱50,000.00 and another sum of ₱50,000.00 as moral damages and to pay the costs.

Pursuant to Supreme Court Administrative Circular No. 2-92 the ₱200,000.00 bail bond put up by accused
Marciano Regalario is hereby cancelled and is ordered recommitted to jail.

SO ORDERED.

The record of this case was forwarded to this Court for automatic review, in view of the penalty imposed.

In our Resolution6 of August 13, 2001, We accepted the appeal and directed the Chief of the Judicial
Records Office, to send notices to the parties to file their respective briefs. The Court also required the Jail
Warden, Municipal Jail, Polangui, Albay to transfer accused-appellants to the Bureau of Corrections,
Muntinlupa City, and make a report of such transfer within ten (10) days from notice. Likewise, the
Director of the Bureau of Corrections was required to confirm the detention of accused-appellants.
Accused-appellants filed their Appellants’ Brief 7 on December 4, 2001, while the People, thru the Office of
the Solicitor General, filed its Appellee's Brief 8 on July 30, 2002.

Pursuant to our pronouncement in People v. Mateo9 which modified the provisions of the Rules of Court
insofar as they provide for direct appeals from the RTC to this Court in cases where the penalty imposed
by the trial court is death, reclusion perpetua or life imprisonment, this case was referred for appropriate
action and disposition to the CA where it was docketed as CA-G.R. No. 01556.

The evidence for the prosecution is summarized by the Office of the Solicitor General, as follows:

Accused-appellants, all surnamed Regalario, are barangay officials of Natasan, Libon, Albay and related to
one another by consanguinity. Marciano, barangay chairman, Sotero, barangay kagawad and Ramon,
barangay tanod, are brothers while Bienvenido Regalario, also barangay tanod, is their cousin and Noel is
the son of Marciano. (TSN, November 16, 1998, p. 9; RTC Order dated October 9, 1998, pp. 115-117)

On the night of February 22, 1997, a dance and singing contest was being held in the barangay pavilion of
Natasan, Libon, Albay. At around ten o’clock that evening, Rolando Sevilla and Armando Poblete were
enjoying the festivities when appellant Sotero Regalario approached them (TSN, December 7, 1998, p.4).
To avoid trouble, the two distanced themselves from Sotero. Nevertheless, a commotion ensued. (ibid., p.
5). Appellants Sotero and Bienvenido Regalario were seen striking Rolando Sevilla several times with their
respective nightsticks, locally known as bahi. (TSN, November 16, 1998, pp. 13-17, 32, 34, 36-37). The
blows caused Sevilla to fall down in a sitting position but after a short while he was able to get up (ibid.,
pp. 16-17). He ran away in the direction of the house of appellant Mariano Regalario, the barangay
captain (ibid., pp. 18-38). Bienvenido and Sotero Regalario chased Sevilla (ibid., p. 38, TSN, December 7,
1998. p. 6). When Sevilla was already near Marciano’s house, he was waylaid by appellant Ramon
Regalario and at this point, Marciano Regalario and his son Noel Regalario came out of their house (TSN,
December 7, 1998, pp. 7-9 and 35). Noel was carrying a seven-inch knife. The five appellants caught the
victim in front of Marciano’s house. Armed with their nightsticks, they took turns in hitting the victim until
he slumped to the ground face down (ibid., pp. 8, 35 and 38). In that position, Sevilla was boxed by
Marciano in the jaw. After a while, when Sevilla was no longer moving, Marciano first ordered the others
to kill the victim and to tie him up (ibid., pp. 36-37). Upon hearing the order, Bienvenido, with the help of
Sotero, tied the neck, hands and feet of the victim with a nylon rope used by farmers for tying carabao.
The rest of the group just stood by watching. (ibid., pp. 37-38).
In the early morning of February 23, 1997, Cynthia Sevilla, the victim’s widow, after she was informed of
her husband’s death, went to the poblacion of Libon to report the incident at the town’s police station
(TSN, December 8, 1998, pp. 7-8). However, her statements were not entered in the police blotter
because appellant Marciano Regalario had earlier reported to them, at two o’clock in the morning, a
different version of the incident, i.e., it was the victim Sevilla who shot Marciano’s brother Ramon and that
Sevilla, allegedly still alive, was placed under the custody of the barangay tanods. (ibid., p. 7; TSN,
November 20, 1998 [A.M. Session], pp. 9-10). At around eight o’clock of the same morning, SPO4 Jose
Gregorio, with some other police officers and Cynthia Sevilla, left the police station on board a truck and
proceeded to the crime scene in Natasan. SPO4 Gregorio conducted an investigation of the incident. (TSN,
November 20, 1998 [A.M. Session], pp. 10-12). Thereafter, the policemen took the victim’s cadaver to the
police station in the poblacion (ibid., p. 26) where pictures were taken showing the victim’s hands and
legs tied behind him [Exhibits ‘C’ and ‘D’] (ibid., pp. 14-15; TSN, December 8, 1998, p. 10; TSN,
November 20, 1998 [P.M. Session], pp 5-7). On that same day, SPO4 Gregorio requested the Libon’s
Rural Health Unit to conduct an autopsy on the victim’s body but since the municipal health officer was not
around, it was only performed the next day, February 24 (TSN, November 20, 1998 [A.M. Session], p. 26;
TSN, December 8, 1998, pp. 10-11; TSN, November 20, 1998 [P.M. Session], p. 11). After Dr. Mario
Cerillo, Municipal Health Officer of Libon conducted the autopsy, he forthwith issued a Medico-Legal Report
dated February 24, 1997 (Exhibit ‘B’), the pertinent portions of which read:

Findings:

Head : Lacerated wound 4 cm

frontal area, Right.

: Lacerated wound 8 cm.

occipital area, Right.

: Lacerated wound 4 cm.

with fractured skull

(post auricular area),

Right.

: Abrasion 4 x 2 cm.

eyebrow, Right.

: Abrasion 2 cm. x 1 cm.

with lacerated wound

1 cm. eyebrow, Left.

: Periorbital Hematoma

Left and Right eye.

: Lacerated wound 1 cm.

lower lip, Left.

Neck : Stab wound 2 cm.

 penetrating lateral base

of the neck just above

the clavicle, Right.

: Stab wound 2 cm., 6 cm.

depth lateral base of the

neck just above the

clavicle, Right.

Trunk : Hematoma 10 x 8 cm.

clavicular area, Right.

: Multiple abrasion chest

: Contusion 7 x 2 cm.,

7th Intercorsal space and

clavicular line, left.

Extremities : Multiple abrasion and

contusion on both Right

and Left arm and forearm.

: Abrasion (Ropemark)

around Right and Left wrist.

: Abrasion (Ropemark) around

distal 3rd of both Right and

Left leg.

xxx xxx xxx xxx

Cause of Death:

Sever blood loss secondary to stab wound and multiple lacerated wound, probably secondary to
intracranial hemorrhage.

On the witness stand, Dr. Cerillo opined that the victim’s lacerated wounds could have been caused by a
blunt instrument like a hard stick, a stone or iron bar, his stab wounds by a sharp-edged instrument or
knife, his contusions and hematoma by a fist blow or through contact with a blunt instrument. Also
according to the physician, the sharp object which caused the victim’s stab wounds could have been a
knife 2 cm. wide and 6 cm. long because they were clean cut wounds. (TSN, November 20, 1998 [P.M.
Session], pp. 14-15).10
On the other hand, the accused-appellants’ Brief presents a different story:

At the time of the incident in question, accused Marciano Regalario was the incumbent barangay captain
of Natasan, Libon, Albay. Accused Sotero was a kagawad, while Ramon and Bienvenido were barangay
tanods of the same place. Noel Regalario had no public position. He is the son of one of the other accused.

On the night of February 22, 1997, a public dance and singing contest was held in their barangay.
Naturally, being barangay officials, the accused, (except Noel who is not an official and whose wife has
just given birth) were at the place of the celebration, discharging their peace-keeping duties. They were
posted at different places in that vicinity.

At first, a fire broke out in the toilet of the Day Care Center. It was attended to by the persons assigned in
that area. A while later, there was another commotion in the area assigned to accused Ramon Regalario.
When he approached the group where the disturbance was taking place and tried to investigate, Rolando
Sevilla suddenly emerged from the group and without any ado, fired a shot at him. He was hit at the left
shoulder. Instinctively, and in order to disable Sevilla from firing more shots, which might prove fatal, he
struck his assailant with his nightstick and hit him at the back of his head. This is the blow which Nancy
Sara and Zaldy Siglos said were delivered by Sotero and Bienvenido. This blow caused Sevilla to reel
backward and lean on the bamboo fence. To prevent Sevilla from regaining his balance, Ramon pressed
his counter-attack by continuing to harass him with blows of his nightstick. As Ramon pressed on forward,
Sevilla retreated backward. Ramon kept him busy parrying the blows which hit his arms and front part of
the body, as they were face to face with each other. But even in the course of such harassment, Sevilla
was able to fire a second shot which missed Ramon.

When they reached the end of the road pavement, Sevilla lost his footing on edge of the pavement and
fell down. At that juncture, Sotero arrived and shouted to Ramon to stop beating Rolando. But Ramon told
him that Rolando still had the gun. So, Sotero plunged at Rolando and they wrestled on the ground for the
possession of the gun. As they struggled, the gun went off but no one was hurt. When Rolando raised his
arms to move the gun away from Sotero, Ramon knocked the gun off his hand and it fell near the place
where Jose Poblete was standing. Poblete just arrived at the scene along with Marciano Regalario who was
already told that his brother Ramon was shot by Sevilla. Poblete picked up the gun. He was instructed by
Marciano to keep it until it is turned over to the authorities.

The wounded Ramon Regalario was brought to town for treatment and later to the provincial hospital.
Marciano and Sotero proceeded to the police station to report the shooting of Ramon.

Bienvenido Regalario, the barangay tanod, arrived at the scene after the fact. He was instructed by
Marciano, the barangay captain to effect the arrest of Rolando Sevilla for the crime of shooting Ramon.
According to Bienvenido, they were taught in their training seminar to just use a rope in lieu of handcuffs
because they could not be supplied with it. So, he tied the hands and feet of Rolando Sevilla for fear that
he might be able to escape.

On the early morning of February 23, a team of policemen went to Natasan and found the dead body of
Rolando Sevilla. Jose Poblete also turned over to the police, Rolando Sevilla’s gun. Meanwhile, Noel
Regalario, after learning of the incident, scoured the place where the third shot was fired during the
struggle between Sotero and Rolando. He found a .38 caliber slug which was also turned over to the
police.11

On May 31, 2006, the CA promulgated the herein challenged decision affirming for the most part the
decision of the trial court with modification as to the penalty imposed. Unlike the trial court, the CA did not
appreciate the mitigating circumstance of voluntary surrender in favor of the accused-appellants. Thus,
the penalty was changed from reclusion perpetua to death, and an additional award of ₱25,000.00 as
exemplary damages was likewise imposed. Pertinently, the CA decision reads in part:

WHEREFORE, the assailed decision is AFFIRMED with MODIFICATION. The accused-appellants are hereby
sentenced to suffer the penalty of DEATH and to pay, jointly and severally, the heirs of Rolando Sevilla the
amount of ₱25,000.00 as exemplary damages.
Let the entire records of this case be elevated to the Supreme Court for its review, pursuant to AM No. 00-
5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases) which
took effect on October 15, 2004.

SO ORDERED.12

As can be gleaned from the above quote, the CA elevated the instant case to this Court in view of the
penalty imposed. In our Resolution13 dated November 14, 2006, we required the parties to simultaneously
submit their respective supplemental briefs. On December 12, 2006, the people filed a manifestation 14
stating that it is waiving the filing of a supplemental brief. Accused-appellants filed their supplemental
brief15 on February 15, 2007.

In their Brief, accused-appellants raise the following assignment of errors:

1. THE TRIAL COURT ERRED IN HOLDING THAT ALL OF THE ACCUSED PARTICIPATED IN THE KILLING OF
ROLANDO SEVILLA AND BASING ITS DECISION, NOT ON DIRECT EVIDENCE BUT ON ITS OWN
SUPPOSITIONS, CONJECTURES AND INFERENCES;

2. THE TRIAL COURT GRIEVOUSLY MISAPPRECIATED THE EVIDENCE AND DISPLAYED BIAS WHEN IT
LEANED IN FAVOR OF THE PROSECUTION EVIDENCE DESPITE THEIR VITAL CONTRADICTIONS AND
OBVIOUS FALSEHOODS;

3. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY AMONG THE ACCUSED AND
THAT THE COMMISSION OF THE OFFENSE WAS ATTENDED BY THE QUALIFYING CIRCUMSTANCES OF
ABUSE OF SUPERIOR STRENGTH AND SCOFFING AT THE BODY OF THE VICTIM;

4. THE LOWER COURT ERRED IN NOT FINDING THAT THE DECEASED WAS KILLED IN SELF-DEFENSE
AND/OR DEFENSE OF RELATIVE

5. THE TRIAL COURT ERRED IN AWARDING DAMAGES TO THE HEIRS OF THE DECEASED.16

We begin our evaluation with accused-appellant Ramon Regalario’s claim of self-defense. Both the CA and
the trial court gave no credence to this theory of self-defense.

When self-defense is invoked by an accused charged with murder or homicide he necessarily owns up to
the killing but may escape criminal liability by proving that it was justified and that he incurred no criminal
liability therefor. Hence, the three (3) elements of self-defense, namely: (a) unlawful aggression on the
part of the victim; (b) reasonable necessity of the means employed to prevent or repel the aggression;
and (c) lack of sufficient provocation on the part of the person defending himself, must be proved by clear
and convincing evidence. However, without unlawful aggression, there can be no self-defense, either
complete or incomplete.17

Accused-appellant Ramon contends that the victim Rolando Sevilla committed an act of unlawful
aggression with no provocation on his [Ramon’s] part. Ramon testified that he was trying to investigate a
commotion when, without warning, Rolando emerged from the group, thrust and fired his gun at him,
hitting him in the left shoulder. To disable Rolando from firing more shots, Ramon struck the victim’s head
at the back with his nightstick, causing the victim to reel backward and lean on the bamboo fence. He
continued hitting Rolando to prevent the latter from regaining his balance and, as he pressed on farther,
the victim retreated backward.

By Ramon’s own account, after he was shot, he hit the victim at the back of the latter’s head and he
continued hitting the victim who retreated backward. From that moment, the inceptive unlawful
aggression on the part of the victim ceased to exist and the continuation of the offensive stance of Ramon
put him in the place of an aggressor. There was clearly no longer any danger, but still Ramon went
beyond the call of self-preservation. In People v. Cajurao,18 we held:
…The settled rule in jurisprudence is that when unlawful aggression ceases, the defender no longer has
the right to kill or even wound the former aggressor. Retaliation is not a justifying circumstance. Upon the
cessation of the unlawful aggression and the danger or risk to life and limb, the necessity for the person
invoking self-defense to attack his adversary ceases.1avvphi1 If he persists in attacking his adversary, he
can no longer invoke the justifying circumstance of self-defense. Self-defense does not justify the
unnecessary killing of an aggressor who is retreating from the fray. (Emphasis supplied)

Ramon’s claim of self-defense is further belied by the presence of two (2) stab wounds on the neck, four
(4) lacerated wounds on the head, as well as multiple abrasions and contusions on different parts of the
victim’s body, as shown in the Medico-Legal Report. Dr. Mario Cerillo who conducted the post-mortem
examination on the victim revealed that the victim’s lacerated wounds could have been caused by a blunt
instrument like a hard stick, a stone or an iron bar; his stab wounds by a sharp-edged instrument or
knife; his contusions and hematoma by a fist blow or through contact with a blunt instrument. He also
declared that the sharp object which caused the victim’s stab wounds could have been a knife 2
centimeters (cms.) wide and 6 cms. long because they were clean-cut wounds. Indeed, even if it were
true that the victim fired a gun at Ramon, the number, nature and severity of the injuries suffered by the
victim indicated that the force used against him by Ramon and his co-accused was not only to disarm the
victim or prevent him from doing harm to others.

The four (4) other accused-appellants, namely, Sotero, Marciano, Bienvenido and Noel, to exonerate
themselves, denied their involvement in inflicting wounds on Rolando.

Sotero claimed that he arrived at the scene of the crime at the time when Rolando lost his footing on the
edge of the pavement and fell down. He even shouted at Ramon to stop beating Rolando. However, when
Ramon told him that Rolando still had the gun, he jumped on Rolando and they wrestled on the ground for
the possession of the gun.

Marciano maintained that he, together with Jose Poblete, arrived at the crime scene when Ramon had
already knocked the gun out of Rolando’s hand and the gun fell near the place where Jose Poblete was
standing. When he went to that place, he already knew that his brother (Ramon) had been shot, so, he
told the latter to go to the hospital. Thereafter, he and Sotero proceeded to the police station to report the
shooting incident.1avvphi1

Bienvenido asserted that he arrived at the crime scene after the shooting incident. He was asked by
Marciano to arrest Rolando.

Lastly, Noel insisted that he was not present when the shooting incident took place. He was inside their
house sleeping, as his wife had just given birth.

We are not convinced.

Accused-appellants’ denials cannot overcome the positive identification by the prosecution’s witnesses.
Elementary is the rule that positive identification, where categorical and consistent, prevails over
unsubstantiated denials because the latter are negative and self-serving, and thus, cannot be given any
weight on the scales of justice.19 The participation of each of the accused-appellants can be fully
ascertained from the clear, categorical and spontaneous testimony given by prosecution witness, Ronnie
Siglos, who was at the scene of the crime, thus:

PROSECUTOR RESARI:

Q While you were walking on your way home, was there an unusual incident and can you recall?

A Yes, ma’am

Q What was that incident about?

A While I was on my way towards the house of my parents, I just suddenly saw a person being
beaten on the road.

Q When you first noticed that there was a man being beaten along the road, how far were you?

A I was about more or less 9 to 10 meters.

xxx xxx xxx

Q When you saw a man being beaten what did you do?

A I continue walking, but upon reaching that place near the person being beaten, I stopped.

Q Why did you stop?

A To verify and know as to who that person being beaten.

xxx xxx xxx

Q And who was that person being beaten?

A Rolando Sevilla.

Q Who were the persons beating Rolando Sevilla?

A Marciano Regalario, Sotero Regalario, Ramon Regalario, Bienvenido Regalario, Noel Regalario,
Ernani Regalario, Reynante Regalario, Jose Poblete, Jose Quinno and Virgilio Rebanal.

Q Who else?

A Cecilio Lunas.

Q If some of the persons you saw beating Rolando Sevilla are present in this court room, will you
be able to point and identify them?

A Yes, ma’am.

xxx xxx xxx

PROSECUTOR:

Q You stated that you saw the persons you have just named as beating Rolando Sevilla. Were
there weapons used in beating Rolando Sevilla?

A Yes.

Q What kind of weapons (was) used?

A Sotero was armed with bahi wood, and also Ramon. Bienvenido was also armed with bahi, as
well as Cecilio Lunas, Jose Quinno were also armed with ‘malo-palo.’

xxx xxx xxx

Q What kind of weapon was being held by Noel Regalario?

A A knife.

xxx xxx xxx

Q Now, when you saw Rolando Sevilla being beaten by the persons you mentioned before, what did
you notice on the condition of Rolando Sevilla?

A He was lying on his stomach.

Q Did you see the face of Rolando Sevilla?

A Yes.

Q How were you able to see the face of Rolando Sevilla?

A Because Sotero was holding him by his hair.

Q What was your observation on the condition of Rolando Sevilla?

xxx xxx xxx

WITNESS:

He was already motionless. He is not moving anymore.

PROSECUTOR:

Of the persons you named as holding weapons, you did not mention Marciano Regalario as holding
any weapon. What was Marciano Regalario doing then?

A He boxed Rolando Sevilla and Rolando was hit on his jaw.

Q What else did Marciano Regalario do if any?

A After he boxed Rolando Sevilla, he went inside his house but after about one (1) minute he again
return(ed) back.

Q After Marciano Regalario returned back, what did he do if any?

A He shouted to kill that.

Q After you heard Marciano Regalario (say) to kill "that," what did you do?

A I proceeded towards home.

Q While you were walking, was there any unusual incident which again happened?

A Yes.

Q And, what was that incident?

A While I was walking towards home, again I heard Marciano Regalario shouted to tie him, that is
why I again stopped.

Q When you heard Marciano Regalario to tie him how far were you from him?
A More or less 7 meters.

Q You said that upon hearing Marciano Regalario, you stopped. What else happened?

A Bienvenido Regalario passed by me and went to that sleigh (pababa) which is on the lower
portion and got a rope.

Q What did Bienvenido Regalario do with the rope?

A He tied Rolando Sevilla by placing he rope around his neck and tied his hands.

Q Was there somebody who assisted Bienvenido Regalario in tying Rolando Sevilla?

A Yes.

Q Who were the persons, if any?

A Sotero Regalario.

Q Aside from Sotero, was there anybody else who helped Bienvenido Regalario in tying Rolando
Sevilla?

A No more.

Q While Rolando Sevilla was being hog tied, where were the persons of Marciano Regalario, Noel
Regalario, Ramon Regalario and the rest of the persons whom you just mentioned awhile ago?

A They were there standing beside Rolando Sevilla and they were watching.

Q Did you notice whether Rolando Sevilla was still moving when he was still being tied up by
Bienvenido and Sotero?

A He was not moving anymore.20

The aforequoted testimony of Ronnie Siglos is corroborated by the following testimony of Armando
Poblete:

Q While you were standing by the road, what did you notice?

A Then I saw Rolando Sevilla being chased by Bienvenido and Sotero both surnamed Regalario

Q To what direction was Rolando Sevilla being chased by Sotero and Bienvenido Regalario?

A Towards the place of Kapitan.

xxx xxx xxx

PROSECUTOR RESARI:

Q Considering that was already nighttime, how were you able to know that the person being
chased was Rolando Sevilla and the persons chasing him were the two (2) Regalarios which you
have identified?

A Because, I was with Sevilla during that time and it was moonlit night.
 Q When the two (2) were chasing Rolando Sevilla, what happened next?

A Ramon waylaid Rolando Sevilla.

xxx xxx xxx

Q After you saw Ramon Regalario waylaid Rolando Sevilla, what else did you see?

A After that I saw the group of Sotero, Regalario, Marciano, Noel, caught up with Rolando.

xxx xxx xxx

PROSECUTOR RESARI:

Q Since Bienvenido Regalario and Sotero Regalario were the ones chasing Rolando Sevilla, from
what direction did Ramon Regalario come from when he waylaid Rolando Sevilla?

A That side, left side going towards the house of Kapitan.

Q And where did Marciano and Noel xxx come from?

A From their house.

Q After the five (5) caught up with Rolando Sevilla, what happened to Rolando Sevilla?

A They took turns in beating him.

Q Did they use any weapon in beating Rolando Sevilla?

A Yes, their night sticks.

Q When Bienvenido and Sotero caught up with Rolando Sevilla; and the three (3) other accused
also joined the two (2), how far was your distance to them?

A More or less 14 to 15 meters.21

We agree with the findings of the two courts below as to the presence of conspiracy. Conspiracy exists
when two or more persons come to an agreement concerning the commission of a felony and decide to
commit it. Direct proof of conspiracy is rarely found, for criminals do not write down their lawless plans
and plots. The agreement to commit a crime, however, may be deduced from the mode and manner of
the commission of the offense or inferred from acts that point to a joint purpose and design, concerted
action, and community of intent. It does not matter who inflicted the mortal wound, as the act of one is
the act of all, and each incurs the same criminal liability.22 We quote with approval the findings and
observations of the CA, thus:

The eyewitnesses’ account surrounding Rolando Sevilla’s death shows that the accused-appellants
performed concerted acts in pursuit of a common objective. Sotero, Bienvenido, and Ramon, armed with
nightsticks, and Noel armed with a knife, seven inches in length, beat Rolando Sevilla. All five accused-
appellants caught up with the victim, blocked all means through which the victim could escape and
ensured the achievement of their plan to kill Rolando Sevilla even as the latter already fell to the ground.
Accused-appellant Marciano hit the victim on his jaw and later, ordered his co-accused to kill and tie the
victim. Upon hearing Marciano’s instruction, Bienvenido Regalario tied Rolando’s neck, hands and feet with
a rope. The collective act of the accused-appellants is sufficient to make them co-principals to the killing.23

Considering the foregoing, as well as the manner in which the attack against Rolando was carried out, and
the testimonies of the prosecution witnesses positively identifying the accused-appellants as the
assailants, we concur in the rulings of the CA, affirming those of the trial court, in (a) disregarding Ramon
Regalario’s declaration that he attacked the victim in self-defense and (b) holding that all the accused-
appellants acted in concert and killed Rolando.

We likewise rule that both the CA and the trial court were correct in appreciating the qualifying
circumstance of abuse of superior strength in killing Rolando Sevilla. To take advantage of superior
strength is to use force out of proportion to the means available to the person attacked to defend himself.
In order to be appreciated, it must be clearly shown that there was deliberate intent on the part of the
malefactors to take advantage thereof.24 In this case, as testified to by the prosecution eyewitnesses,
accused-appellants Ramon, Sotero and Bienvenido, with the exception of Marciano, were armed with
nightsticks (bahi) while Noel was holding a knife. Clearly they took advantage of their superiority in
number and arms in killing the victim, as shown by numerous wounds the latter suffered in different parts
of his body.

Also affirmed is the ruling of both courts appreciating the presence of the generic aggravating
circumstance of scoffing at the body of the victim. Accused-appellants did not just kill the victim. They tied
him hog-style after rendering him immobilized. This action constituted outraging or scoffing at the corpse
of the victim. In this connection, we agree with the trial court’s observation:

…The concerted acts committed by all the accused mostly armed with wooden clubs and one with a 7-inch
long knife after the victim fell pummeling him with mortal blows on the forehead and back of his head and
stab wounds on his neck and one of them telling his co-accused to kill the victim clearly proved that the
Regalarios conspired and took advantage of their strength and number. Not satisfied with delivering
mortal blows even when their hapless victim was already immobile, Bienvenido and Sotero, upon order of
their co-accused Marciano, tied their victim hog style. The manner by which Rolando was tied as vividly
captured in the picture (Exhs. ‘C’ & ‘D’) clearly speaks for itself that it was nothing but to scoff at their
victim.25

The CA was likewise correct in not appreciating the mitigating circumstance of voluntary surrender in favor
of accused-appellants. For said circumstance to be appreciated, it must be spontaneous, in such a manner
that it shows the intent of the accused to surrender unconditionally to the authorities, either because he
acknowledges his guilt or because he wishes to save them the trouble and expense of finding and
capturing him.26 In the case at bar, accused-appellants remained at large even after Judge Jose S. Sañez
issued the warrant for their arrest on February 6, 1998. Accused-appellants surrendered only on
September 9, 1998 after several alias warrants of arrest were issued against them. Hence, voluntary
surrender cannot be appreciated in their favor as mitigating circumstance.

The accused-appellants’ acts plainly amount to murder, qualified by abuse of superior strength. As the
generic aggravating circumstance of scoffing at the body of the victim was alleged and proven, and as
there was no mitigating circumstance, the CA correctly sentenced accused-appellants to death in
accordance with Art. 248, as amended by Republic Act No. 7659, in relation to Art. 63(1) of the revised
Penal Code.

In view, however, of the passage of Republic Act No. 9346, 27 the imposition of the death penalty has been
prohibited. Thus, the penalty imposed upon accused-appellants should be reduced to reclusion perpetua,
without eligibility for parole.

While the new law prohibits the imposition of the death penalty, the penalty provided for by law for a
heinous offense is still death and the offense is still heinous. 28 Consequently, the civil indemnity for the
victim is still ₱75,000.00. In People v. Quiachon,29 we explained that even if the penalty of death is not to
be imposed on appellant because of the prohibition in Republic Act No. 9346, the civil indemnity of
₱75,000.00 is still proper because, following the ratiocination in People v. Victor (292 SCRA 186), the said
award is not dependent on the actual imposition of the death penalty but on the fact that qualifying
circumstances warranting the imposition of the death penalty attended the commission of the offense.

As to the award of moral and exemplary damages, the CA correctly held accused-appellants jointly and
severally liable to pay the heirs of Rolando Sevilla for the same. Moral damages are awarded despite the
absence of proof of mental and emotional suffering of the victim’s heirs. As borne out by human nature
and experience, a violent death invariably and necessarily brings about emotional pain and anguish on the
part of the victim’s family.30 If a crime is committed with an aggravating circumstance, either qualifying or
generic, an award of exemplary damages is justified under Article 2230 of the New Civil Code. This kind of
damage is intended to serve as deterrent to serious wrongdoings and as vindication of undue sufferings
and wanton invasion of the rights of an injured, or as a punishment for those guilty of outrageous
conduct.31 However, consistent with recent jurisprudence on heinous crimes where the imposable penalty
is death but reduced to reclusion perpetua pursuant to Republic Act No. 9346, the award of moral
damages should be increased from ₱50,000.00 to ₱75,000.00 32 while the award of exemplary damages
should be increased from ₱25,000.00 to ₱30,000.00.33

WHEREFORE, the decision of the Court of Appeals dated May 31, 2006 in CA-G.R. CR No. 01556 is hereby
AFFIRMED with the following modifications: (1) the penalty of death imposed on accused-appellants is
lowered to reclusion perpetua without eligibility for parole; (2) the monetary awards to be paid jointly and
severally by accused-appellants are as follows: ₱75,000.00 as civil indemnity, ₱75,000.00 as moral
damages and ₱30,000.00 as exemplary damages; and (3) interest on all the damages awarded at the
legal rate of 6% from this date until fully paid is imposed. 34

SO ORDERED.
 FIRST DIVISION

G.R. No. 177743 January 25, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ALFONSO FONTANILLA y OBALDO, Accused-Appellant.

DECISION

BERSAMIN, J.:

An indispensable requisite of self-defense is that the victim must have mounted an unlawful aggression
against the accused. Without such unlawful aggression, the accused cannot invoke self-defense as a
justifying circumstance.

The accused prays for the review and reversal of the decision promulgated on June 29, 2006,1 whereby
the Court of Appeals (CA) affirmed his conviction for murder handed down by the Regional Trial Court
(RTC), Branch 34, in Balaoan, La Union.

Antecedents

At around 9:30 p.m. on October 29, 1996, Jose Olais was walking along the provincial road in Butubut
Oeste, Balaoan, La Union when Alfonso Fontanilla suddenly struck him in the head with a piece of wood
called bellang.2 Olais fell facedown to the ground, but Fontanilla hit him again in the head with a piece of
stone. Fontanilla desisted from hitting Olais a third time only because Joel Marquez and Tirso Abunan, the
sons-in-law of Olais, shouted at him, causing him to run away. Marquez and Abunan rushed their father-
in-law to a medical clinic, where Olais was pronounced dead on arrival.3

On April 25, 1997, the Office of the Provincial Prosecutor of La Union filed an information for murder
against Fontanilla in the RTC, viz:

That on or about the 29th day of October 1996, along the Provincial Road at Barangay Butubut Oeste,
Municipality of Balaoan, Province of La Union, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill and with evident premeditation and treachery, did
then and there willfully, unlawfully and feloniously attack, assault and strike with a long coconut night
stick and thereafter hit with a stone the head of Jose Olais, thereby inflicting on the latter head wounds
which caused the death of the latter, to the damage and prejudice of the heirs of said victim.

CONTRARY TO LAW.4

The accused pleaded not guilty.

The State presented Marquez and Abunan as its witnesses. They claimed that they were only several
meters away from Olais when Fontanilla struck him; that they shouted at Fontanilla, who fled because of
them; and that they were able to see and to identify Fontanilla as the attacker of their father-in-law
because the area was then well-lighted.5

Dr. Felicidad Leda, the physician who conducted the autopsy on the cadaver of Olais, attested that her
post-mortem examination showed that Olais had suffered a fracture on the left temporal area of the skull,
causing his death. She opined that a hard object or a severe force had hit the skull of the victim more
than once, considering that the skull had been already fragmented and the fractures on the skull had been
radiating.6

SPO1 Abraham Valdez, who investigated the slaying and apprehended Fontanilla, declared that he had
gone looking for Fontanilla in his house along with other policemen; that Fontanilla’s father had denied
that he was around; that their search of the house had led to the arrest of Fontanilla inside; and that they
had then brought him to the police station.7 Valdez further declared that Fontanilla asserted that he would
only speak in court.8

At the trial, Fontanilla claimed self-defense. He said that on the night of the incident, he had been
standing on the road near his house when Olais, wielding a nightstick and appearing to be drunk, had
boxed him in the stomach; that although he had then talked to Olais nicely, the latter had continued
hitting him with his fists, striking him with straight blows; that Olais, a karate expert, had also kicked him
with both his legs; that he had thus been forced to defend himself by picking up a stone with which he
had hit the right side of the victim’s head, causing the latter to fall face down to the ground; and that he
had then left the scene for his house upon seeing that Olais was no longer moving.9

Fontanilla’s daughter Marilou corroborated her father’s version.10

On June 21, 2001, the RTC declared Fontanilla guilty as charged, and disposed thusly:

WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring he accused
ALFONSO FONTANILLA Y OBALDO @ ‘Carlos’ guilty beyond reasonable doubt of the crime of MURDER as
defined and penalized in Art. 248 of the Revised Penal Code, as amended by Republic Act No. 7659, Sec.
6, and thereby sentences him to suffer the penalty of RECLUSION PERPETUA TO DEATH and to indemnify
the heirs of the victim in the amount of Fifty Thousand Pesos ( ₱50,000.00).

SO ORDERED.11

The RTC rejected Fontanilla’s plea of self-defense by observing that he had "no necessity to employ a big
stone, inflicting upon the victim a mortal wound causing his death"12 due to the victim attacking him only
with bare hands. It noted that Fontanilla did not suffer any injury despite his claim that the victim had
mauled him; that Fontanilla did not receive any treatment, and no medical certificate attested to any
injury he might have suffered, having been immediately released from the hospital;13 that Fontanilla’s
failure to give any statement at the time he surrendered to the police was inconsistent with his plea of
self-defense;14 and that the manner of attack against Olais established the attendance of treachery.15

On appeal, the CA affirmed the RTC, holding that Fontanilla did not establish the indispensable element of
unlawful aggression; that his failure to report the incident to the police at the earliest opportunity, or even
after he was taken into custody, negated the plea of self-defense; and that the nature of the victim’s
injury was a significant physical proof to show a determined effort on the part of Fontanilla to kill him, and
not just to defend himself.16

The CA ruled that treachery was attendant, because Olais had no inkling that a fatal blow was looming
upon him, and because Fontanilla was inconspicuously hidden from view when he struck Olais from
behind, rendering Olais unable to retaliate.17

Nonetheless, the CA rectified the penalty from reclusion perpetua to death to only reclusion perpetua upon
noting the absence of any aggravating or mitigating circumstance, and disposed as follows:

IN VIEW OF ALL THE FOREGOING, the appealed decision of the Regional Trial Court of Balaoan, La Union,
Branch 34, in Criminal Case No. 2561 is hereby AFFIRMED with MODIFICATION that appellant Fontanilla is
hereby sentenced to suffer the penalty of reclusion perpetua. No cost.

SO ORDERED.18

The accused is now appealing, insisting that the CA erred because:

I.

THE TRIAL COURT GRAVELY ERRED IN IGNORING THE ACCUSED-APPELLANT’S CLAIM OF SELF-
DEFENSE.
 II.

EVEN GRANTING THAT ACCUSED-APPELLANT KILLED THE VICTIM, THE TRIAL COURT GRAVELY
ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER WHEN THE
QUALIFYING CIRCUMSTANCE OF TREACHERY WAS NOT PROVEN BEYOND REASONABLE DOUBT.

III.

FURTHERMORE, THE TRIAL COURT GRAVELY ERRED IN NOT APPRECIATING THE SPECIAL
PRIVILEGE[D] MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AND THE MITIGATING
CIRCUMSTANCE OF VOLUNTARY SURRENDER.

Ruling

We affirm the conviction.

Fontanilla pleaded self-defense. In order for self-defense to be appreciated, he had to prove by clear and
convincing evidence the following elements: (a) unlawful aggression on the part of the victim; (b)
reasonable necessity of the means employed to prevent or repel it; and (c) lack of sufficient provocation
on the part of the person defending himself.19 Unlawful aggression is the indispensable element of self-
defense, for if no unlawful aggression attributed to the victim is established, self-defense is unavailing, for
there is nothing to repel.20 The character of the element of unlawful aggression is aptly explained as
follows:

Unlawful aggression on the part of the victim is the primordial element of the justifying circumstance of
self-defense. Without unlawful aggression, there can be no justified killing in defense of oneself. The test
for the presence of unlawful aggression under the circumstances is whether the aggression from the
victim put in real peril the life or personal safety of the person defending himself; the peril must not be an
imagined or imaginary threat. Accordingly, the accused must establish the concurrence of three elements
of unlawful aggression, namely: (a) there must be a physical or material attack or assault; (b) the attack
or assault must be actual, or, at least, imminent; and (c) the attack or assault must be unlawful.

Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent unlawful
aggression. Actual or material unlawful aggression means an attack with physical force or with a weapon,
an offensive act that positively determines the intent of the aggressor to cause the injury. Imminent
unlawful aggression means an attack that is impending or at the point of happening; it must not consist in
a mere threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong
(like aiming a revolver at another with intent to shoot or opening a knife and making a motion as if to
attack). Imminent unlawful aggression must not be a mere threatening attitude of the victim, such as
pressing his right hand to his hip where a revolver was holstered, accompanied by an angry countenance,
or like aiming to throw a pot.21

By invoking self-defense, however, Fontanilla admitted inflicting the fatal injuries that caused the death of
Olais. It is basic that once an accused in a prosecution for murder or homicide admitted his infliction of the
fatal injuries on the deceased, he assumed the burden to prove by clear, satisfactory and convincing
evidence the justifying circumstance that would avoid his criminal liability.22 Having thus admitted being
the author of the death of the victim, Fontanilla came to bear the burden of proving the justifying
circumstance to the satisfaction of the court,23 and he would be held criminally liable unless he
established self-defense by sufficient and satisfactory proof.24 He should discharge the burden by relying
on the strength of his own evidence, because the Prosecution’s evidence, even if weak, would not be
disbelieved in view of his admission of the killing.25 Nonetheless, the burden to prove guilt beyond
reasonable doubt remained with the State until the end of the proceedings.

Fontanilla did not discharge his burden. A review of the records reveals that, one, Olais did not commit
unlawful aggression against Fontanilla, and, two, Fontanilla’s act of hitting the victim’s head with a stone,
causing the mortal injury, was not proportional to, and constituted an unreasonable response to the
victim’s fistic attack and kicks.
Indeed, had Olais really attacked Fontanilla, the latter would have sustained some injury from the
aggression. It remains, however, that no injury of any kind or gravity was found on the person of
Fontanilla when he presented himself to the hospital; hence, the attending physician of the hospital did
not issue any medical certificate to him. Nor was any medication applied to him.26 In contrast, the
physician who examined the cadaver of Olais testified that Olais had been hit on the head more than once.
The plea of self-defense was thus belied, for the weapons used by Fontanilla and the location and number
of wounds he inflicted on Olais revealed his intent to kill, not merely an effort to prevent or repel an attack
from Olais. We consider to be significant that the gravity of the wounds manifested the determined effort
of the accused to kill his victim, not just to defend himself.27

The CA and the RTC found that treachery was attendant. We concur. Fontanilla had appeared out of
nowhere to strike Olais on the head, first with the wooden stick, and then with a big stone, causing Olais
to fall to the ground facedown. The suddenness and unexpectedness of the attack effectively denied to
Olais the ability to defend himself or to retaliate against Fontanilla.

The imposition of reclusion perpetua by the CA was warranted under Article 248 of the Revised Penal
Code,28 which prescribes reclusion perpetua to death as the penalty for murder. Under the rules on the

application of indivisible penalties in Article 63 of the Revised Penal Code,29 the lesser penalty of reclusion
perpetua is imposed if there are neither mitigating nor aggravating circumstances. Yet, the Court points
out that the RTC erroneously imposed "RECLUSION PERPETUA TO DEATH" as the penalty. Such imposition
was bereft of legal justification, for reclusion perpetua and death, being indivisible, should not be imposed
as a compound, alternative or successive penalty for a single felony. In short, the imposition of one
precluded the imposition of the other.

The Court also modifies the limiting of civil damages by the CA and the RTC to only the death indemnity of
₱50,000.00. When death occurs due to a crime, the damages to be awarded may include: (a) civil
indemnity ex delicto for the death of the victim; (b) actual or compensatory damages; (c) moral damages;
(d) exemplary damages; and (e) temperate damages.30

Accordingly, the CA and the RTC should also have granted moral damages in addition to the death
indemnity, which were of different kinds.31 The death indemnity compensated the loss of life due to
crime, but appropriate and reasonable moral damages would justly assuage the mental anguish and
emotional sufferings of the surviving family of Olais.32 Although mental anguish and emotional sufferings
of the surviving family were not quantifiable with mathematical precision, the Court must nonetheless
strive to set an amount that would restore the heirs of the deceased to their moral status quo ante. Given
the circumstances, ₱50,000.00 should be reasonable as moral damages, which, pursuant to prevailing
jurisprudence,33 we are bound to award despite the absence of any allegation and proof of the heirs’
mental anguish and emotional suffering. The rationale for doing so rested on human nature and
experience having shown that:

xxx a violent death invariably and necessarily brings about emotional pain and anguish on the part of the
victim’s family. It is inherently human to suffer sorrow, torment, pain and anger when a loved one
becomes the victim of a violent or brutal killing. Such violent death or brutal killing not only steals from
the family of the deceased his precious life, deprives them forever of his love, affection and support, but
often leaves them with the gnawing feeling that an injustice has been done to them.34 1âwphi1

Another omission of the CA and the RTC was their non-recognition of the right of the heirs of the victim to
temperate damages. The victim’s wife testified about her family’s incurring funeral expenses of
₱36,000.00, but only ₱18,000.00 was backed by receipts. It is already settled that when actual damages
substantiated by receipts sum up to lower than ₱25,000.00, temperate damages of at least ₱25,000.00
become justified, in lieu of actual damages in the lesser amount actually proved by receipts. It would
obviously be unfair to the heirs of the victim to deny them compensation by way of actual damages
despite their honest attempt to prove their actual expenses by receipts (but succeeding only in showing
expenses lower than ₱25,000.00 in amount).35 Indeed, the heirs should not be left in a worse situation
than the heirs of another victim who might be nonetheless allowed temperate damages of ₱25,000.00
despite not having presented any receipts at all. With the victim’s wife having proved ₱18,000.00 worth of
expenses, granting his heirs temperate damages of ₱25,000.00, not only ₱18,000.00, is just and proper.
Not to do so would foster a travesty of basic fairness.

The Civil Code provides that exemplary damages may be imposed in criminal cases as part of the civil
liability "when the crime was committed with one or more aggravating circumstances."36 The Civil Code
permits such damages to be awarded "by way of example or correction for the public good, in addition to
the moral, temperate, liquidated or compensatory damages."37 In light of such legal provisions, the CA
and the RTC should have recognized the entitlement of the heirs of the victim to exemplary damages on
account of the attendance of treachery. It was of no moment that treachery was an attendant
circumstance in murder, and, as such, inseparable and absorbed in murder. As well explained in People v.
Catubig:38

The term "aggravating circumstances" used by the Civil Code, the law not having specified otherwise, is to
be understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one
on the public as it breaches the social order and the other upon the private victim as it causes personal
sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the
accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a
graver felony underscores the exacerbation of the offense by the attendance of aggravating
circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is
basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the
offended party who suffers thereby. It would make little sense for an award of exemplary damages to be
due the private offended party when the aggravating circumstance is ordinary but to be withheld when it
is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that
should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine,
relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying,
should entitle the offended party to an award of exemplary damages within the unbridled meaning of
Article 2230 of the Civil Code.

For the purpose, ₱30,000.00 is reasonable and proper as exemplary damages,39 for a lesser amount
would not serve result in genuine exemplarity.

WHEREFORE, we AFFIRM the decision promulgated on June 29, 2006 by the Court of Appeals, subject to
the MODIFICATION of the civil damages, by ordering accused Alfonso Fontanilla y Obaldo to pay to the
heirs of Jose Olais ₱25,000.00 as temperate damages and ₱30,000.00 as exemplary damages in addition
to the ₱50,000.00 as death indemnity and the ₱50,000.00 as moral damages, plus interest of 6% per
annum on such amounts from the finality of the judgment.

The accused shall pay the costs of suit.

SO ORDERED.
 FIRST DIVISION

G.R. No. 199579 December 10, 2012

RAMON JOSUE y GONZALES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondents.

RESOLUTION

REYES, J.:

Before the Court is a Petition for Review on Certiorari filed by petitioner Ramon Josue y Gonzales (Josue)
to assail the Decision 1 dated June 30, 2011 and Resolution2 dated December 1, 2011 of the Court of
Appeals (CA) in CA-G.R. CR No. 33180.

The petitioner was charged with the crime of frustrated homicide before the Regional Trial Court (RTC) of
Manila, via an information that reads:

That on or about May 1, 2004, in the City of Manila, Philippines, the said accused, with intent to kill, did
then and there willfully, unlawfully and feloniously, attack, assault and use personal violence upon the
person of ARMANDO MACARIO y PINEDA a.k.a. BOYET ORA, by then and there shooting the said Armando
Macario y Pineda a.k.a. Boyet Ora several times with a cal. 45 pistol hitting him on the different parts of
his body, thus performing all the acts of execution which should have produced the crime of Homicide, as
a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is, by
the timely and able medical attendance rendered to the said ARMANDO MACARIO y PINEDA a.k.a. BOYET
ORA which prevented his death thereafter.

Contrary to law.3

The case was docketed as Crim. Case No. 05-236299 and raffled to Branch 40 of the RTC. Upon
arraignment, the petitioner entered a plea of "not guilty". After pre-trial, trial on the merits ensued.

The witnesses for the prosecution were: (1) victim Armando Macario y Pineda (Macario); (2) Dr. Casimiro
Tiongson, Jr. (Dr. Tiongson), Chief Surgical Resident of Chinese General Hospital; (3) Dr. Edith Calalang
(Dr. Calalang), a radiologist; (4) Ariel Villanueva, an eyewitness to the crime; and (5) Josielyn Macario,
wife of the victim. The prosecution presented the following account:

On May 1, 2004, at around 11:15 in the evening, Macario, a barangay tanod, was buying medicine from a
store near the petitioner’s residence in Barrio Obrero, Tondo, Manila when he saw the petitioner going
towards him, while shouting to ask him why he had painted the petitioner’s vehicle. Macario denied the
petitioner’s accusation, but petitioner still pointed and shot his gun at Macario. The gunshots fired by the
petitioner hit Macario’s elbow and fingers. As the unarmed Macario tried to flee from his assailant, the
petitioner still fired his gun at him, causing him to sustain a gunshot wound at his back. Macario was then
rushed to the Chinese General Hospital for medical treatment.

Dr. Tiongson confirmed that Macario sustained three (3) gunshot wounds: (1) one on his right hand, (2)
one on his left elbow, and (3) one indicating a bullet’s entry point at the posterior of the chest, exiting at
the anterior line. Dr. Calalang took note of the tiny metallic foreign bodies found in Macario’s x-ray results,
which confirmed that the wounds were caused by gunshots. Further, she said that the victim’s injuries
were fatal, if not medically attended to. Macario incurred medical expenses for his treatments.

For his defense, the petitioner declared to have merely acted in self-defense. He claimed that on the
evening of May 1, 2004, he, together with his son Rafael, was watching a television program when they
heard a sound indicating that the hood of his jeepney was being opened. He then went to the place where
his jeepney was parked, armed with a .45 caliber pistol tucked to his waist. There he saw Macario,
together with Eduardo Matias and Richard Akong, in the act of removing the locks of his vehicle’s battery.
When the petitioner sought the attention of Macario’s group, Macario pointed his .38 caliber gun at the
petitioner and pulled its trigger, but the gun jammed and failed to fire. The petitioner then got his gun and
used it to fire at Macario, who was hit in the upper arm. Macario again tried to use his gun, but it still
jammed then fell on the ground. As Macario reached down for the gun, the petitioner fired at him once
more, hitting him at the back. When Macario still tried to fire his gun, the petitioner fired at him for the
third time, hitting his hand and causing Macario to drop his gun. The petitioner got Macario’s gun and kept
it in his residence.

The petitioner’s son, Rafael Josue, testified in court to corroborate his father’s testimony.

SPO4 Axelito Palmero (SPO4 Palmero) also testified for the defense, declaring that on May 26, 2004, he
received from Josue a .38 caliber revolver that allegedly belonged to Macario.

On October 22, 2009, the RTC rendered its Decision4 finding the petitioner guilty beyond reasonable
doubt of the crime of frustrated homicide. It gave full credit to the testimony of the prosecution witnesses,
further noting that the defense had failed to prove that the .38 caliber revolver that was turned over to
SPO4 Palmero actually belonged to Macario. The dispositive portion of the RTC Decision reads:

WHEREFORE, accused RAMON JOSUE y GONZALES is found guilty beyond reasonable doubt of
Frustrated Homicide without any aggravating or mitigating circumstances to vary the penalty imposable.
Applying the Indeterminate Sentence Law, he is hereby sentenced to suffer an indeterminate penalty of
six (6) months and one (1) day of prision correccional as minimum, to eight (8) years and one (1) day of
prision mayor as maximum.

Accused Ramon Josue y Gonzales is hereby ordered to indemnify the victim, Armando Macario y Pineda,
the sum of [P]32,214.25 for hospitalization and medicine expenses as actual damages.

The accused’s bail is deemed cancelled. Bondsman is ordered to surrender the accused to this Court for
execution of the final judgment.

SO ORDERED.5

Unsatisfied, the petitioner appealed from the RTC’s decision to the CA, which affirmed the rulings of the
RTC and thus, dismissed the appeal.

Hence, the present petition. The petitioner assails the CA’s dismissal of the appeal, arguing that the
prosecution had failed to overthrow the constitutional presumption of innocence in his favor.

We deny the petition.

At the outset, we emphasize that since the petitioner seeks this Court’s review of his case through a
petition for review under Rule 45 of the Rules of Court, only questions of law shall be addressed by the
Court, barring any question that pertains to factual issues on the crime’s commission. The general rule is
that questions of fact are not reviewable in petitions for review under Rule 45, subject only to certain
exceptions as when the trial court’s judgment is not supported by sufficient evidence or is premised on a
misapprehension of facts.6

Upon review, the Court has determined that the present case does not fall under any of the exceptions. In
resolving the present petition, we then defer to the factual findings made by the trial court, as affirmed by
the CA when the case was brought before it on appeal. The Court has, after all, consistently ruled that the
task of assigning values to the testimonies of witnesses and weighing their credibility is best left to the
trial court which forms first-hand impressions as witnesses testify before it. Factual findings of the trial
court as regards its assessment of the witnesses’ credibility are entitled to great weight and respect by
this Court, particularly when affirmed by the CA, and will not be disturbed absent any showing that the
trial court overlooked certain facts and circumstances which could substantially affect the outcome of the
case.7
As against the foregoing parameters, the Court finds, and so holds, that both the trial and appellate courts
have correctly ruled on the petitioner’s culpability for the crime of frustrated homicide, which has the
following for its elements:

(1) the accused intended to kill his victim, as manifested by his use of a deadly weapon in his
assault;

(2) the victim sustained fatal or mortal wound/s but did not die because of timely medical
assistance; and

(3) none of the qualifying circumstance for murder under Article 248 of the Revised Penal Code is
present.

These elements were duly established during the trial.

The trial court’s factual findings, when taken collectively, clearly prove the existence of the crime’s first
and second elements, pertaining to the petitioner’s intent to kill and his infliction of fatal wound upon the
victim. Evidence to prove intent to kill in crimes against persons may consist, among other things, of the
means used by the malefactors; the conduct of the malefactors before, at the time of, or immediately
after the killing of the victim; and the nature, location and number of wounds sustained by the victim.8
Significantly, among the witnesses presented by the prosecution was Villanueva, who, while being a friend
of the petitioner, had testified against the petitioner as an eyewitness and specifically identified the
petitioner as the assailant that caused the wounds sustained by the victim Macario. Even the petitioner
cites in the petition he filed with this Court the prosecution’s claim that at the time he fired the first
gunshot, he was shouting, "Papatayin kita! (I will kill you!)"9 The doctors who attended to the victim’s
injuries also affirmed before the trial court that Macario had sustained gunshot wounds, and that the
injuries caused thereby were fatal if not given medical attention. The trial court then held:

Weighing the evidence thus proffered, this Court believes the prosecution’s version.

xxxx

The Court gives credence to the testimonies of the witnesses presented by the prosecution as it did not
find any fact or circumstance in the shooting incident to show that said witnesses had falsely testified or
that they were actuated by ill-motive.

xxxx

x x x (A)s a result of being shot three (3) times with a .45 caliber gun, complainant sustained mortal
wounds which without medical assistance, complainant could have died therefrom. Dr. Casimiro Tiongson,
Jr., the chief surgical resident who attended the complainant and prescribed his medicines, testified that
the victim, Armando Macario, sustained three (3) gunshot wounds located in the left elbow, right hand
and another bullet entering his posterior chest exiting in front of complainant’s chest.

These findings were also contained in the x-ray consultation reports testified to by Dr. Edith Calalang as
corroborating witness.10 (Citations omitted)

What is also noteworthy is that the petitioner invoked self-defense, after he had admitted that he caused
the victim’s wounds when he shot the latter several times using a deadly weapon, i.e., the .45 caliber
pistol that he carried with him to the situs of the crime. In People v. Mondigo,11 we explained:

By invoking self-defense, appellant admitted committing the felonies for which he was charged
albeit under circumstances which, if proven, would justify his commission of the crimes. Thus,
the burden of proof is shifted to appellant who must show, beyond reasonable doubt, that the
killing of Damaso and wounding of Anthony were attended by the following circumstances: (1) unlawful
aggression on the part of the victims; (2) reasonable necessity of the means employed to
prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending
himself.12 (Citations omitted and emphasis ours)

In order to be exonerated from the charge, the petitioner then assumed the burden of proving, beyond
reasonable doubt, that he merely acted in self-defense. Upon review, we agree with the RTC and the CA
that the petitioner failed in this regard.

While the three elements quoted above must concur, self-defense relies, first and foremost, on proof of
unlawful aggression on the part of the victim. If no unlawful aggression is proved, then no self-defense
may be successfully pleaded.13 "Unlawful aggression" here presupposes an actual, sudden, and
unexpected attack, or imminent danger of the attack, from the victim.14

In the present case, particularly significant to this element of "unlawful aggression" is the trial court’s
finding that Macario was unarmed at the time of the shooting, while the petitioner then carried with him a
.45 caliber pistol. According to prosecution witness Villanueva, it was even the petitioner who confronted
the victim, who was then only buying medicine from a sari-sari store. Granting that the victim tried to
steal the petitioner’s car battery, such did not equate to a danger in his life or personal safety. At one
point during the fight, Macario even tried to run away from his assailant, yet the petitioner continued to
chase the victim and, using his .45 caliber pistol, fired at him and caused the mortal wound on his chest.
Contrary to the petitioner’s defense, there then appeared to be no "real danger to his life or personal
safety,"15 for no unlawful aggression, which would have otherwise justified him in inflicting the gunshot
wounds for his defense, emanated from Macario’s end.*

The weapon used and the number of gunshots fired by the petitioner, in relation to the nature and location
of the victim’s wounds, further negate the claim of self-defense. For a claim of self-defense to prosper, the
means employed by the person claiming the defense must be commensurate to the nature and extent of
the attack sought to be averted, and must be rationally necessary to prevent or repel an unlawful
aggression.16 Considering the petitioner’s use of a deadly weapon when his victim was unarmed, and his
clear intention to cause a fatal wound by still firing his gun at the victim who had attempted to flee after
already sustaining two gunshot wounds, it is evident that the petitioner did not act merely in self-defense,
but was an aggressor who actually intended to kill his victim.

Given the foregoing, and in the absence of any circumstance that would have qualified the crime to
murder, we hold that the trial court committed no error in declaring the petitioner guilty beyond
reasonable doubt of the crime of frustrated homicide. Applying the rules provided by the Indeterminate
Sentence Law, the trial court correctly imposed for such offense an indeterminate penalty of six ( 6)
months and one (1) day of prision correccional as minimum, to eight (8) years and one (1) day of prision
mayor as maximum. The award of actual damages is also sustained. However, we hold that in line with
prevailing jurisprudence, 17 the victim is entitled to an award of moral damages in the amount of
P10,000.00.

WHEREFORE, the petition is DENIED. The Decision dated June 30, 2011 and Resolution dated December
1, 2011 ofthe Court of Appeals in CA-G.R. CR No. 33180 are AFFIRMED with MODIFICATION in that the
petitioner Ramon Josue y Gonzales is also ordered to pay the offended party the amount of P10,000.00 as
moral damages.

SO ORDERED.
 SECOND DIVISION

G.R. No. 158057 September 24, 2004

NOE TOLEDO y TAMBOONG, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review of the Decision 1 of the Court of Appeals (CA) in CA-G.R. CR No. 23742
affirming on appeal, the Decision2 of the Regional Trial Court (RTC) of Odiongan, Romblon, Branch 82, in
Criminal Case No. OD-861, convicting the petitioner of homicide.

In an Information filed in the RTC of Romblon, the petitioner was charged with homicide allegedly
committed as follows:

That on or about the 16th day of September 1995, at around 9:30 o’clock in the evening, in
Barangay Libertad, municipality of Odiongan, province of Romblon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, with intent to kill, did then and there,
willfully, unlawfully and feloniously attack, assault and stab with a bolo, one RICKY F. GUARTE,
which causes (sic) his untimely death.

Contrary to law.3

In due course, the prosecution adduced evidence against the petitioner which was synthesized by the
appellate court as follows:

On September 16, 1995, appellant went to a black-smith who made the design of his bolo. When
he went home to Tuburan, Odiongan, Romblon late in the afternoon (TSN, September 4, 1998, p.
2), appellant saw the group of Lani Famero, Michael Fosana, Rex Cortez and Ricky Guarte drinking
gin at the house of the Spouses Manuel and Eliza Guarte, Ricky’s parents. Appellant’s house is
about five (5) meters away from the house of Spouses Guarte. Appellant requested the group of
Ricky to refrain from making any noise. Thereupon, appellant proceeded inside his house and went
to sleep (ibid., p. 3). Around 9:00 p.m., Gerardo Faminia, Eliza Guarte’s brother arrived at the
Guarte house and asked for any left-over food (TSN, August 5, 1998, p. 3). Eliza prepared dinner
for him and after Gerardo finished eating, he went home accompanied by Ricky (TSN, April 26,
1996, p. 5). Gerardo’s home is about twelve (12) meters away from the Guarte home (TSN,
February 17, 1997, p. 11). Minutes later, Ricky came back and together with Lani, Rex and
Michael, went to sleep at the Guarte house. They had not laid down for long when they heard
stones being hurled at the roof of the house. The stoning was made three (3) times (TSN, August
5, 1998, pp. 2-3). Ricky rose from bed and peeped through a window. He saw appellant stoning
their house. Ricky went out of the house and proceeded to appellant’s house. Ricky asked
appellant, his uncle, why he was stoning their house. Appellant did not answer but met Ricky at the
doorstep of his (appellant’s) house (TSN, April 26, 1996, p. 6; August 5, 1998, pp. 4-5) and,
without any warning, stabbed Ricky on the abdomen with a bolo (TSN, August 5, 1998, p. 8). Eliza
had followed his son Ricky and upon seeing that Ricky was stabbed, shouted for help (TSN,
February 17, 1997, p. 13). Lani heard Eliza’s cry for help and immediately rushed outside the
house. Lani saw Ricky leaning on the ground and supporting his body with his hands. Lani helped
Ricky stand up and brought him to the main road. Lani asked Ricky who stabbed him and Ricky
replied that it was appellant who stabbed him. Then Docloy Cortez arrived at the scene on board
his tricycle. Accordingly, Ricky was put on the tricycle and taken to the Romblon Provincial Hospital
(TSN, January 19, 1998, pp. 4-6).
At the Romblon Provincial Hospital, Dr. Noralie Fetalvero operated on Ricky that very night. Ricky had
sustained one (1) stab wound but due to massive blood loss, he died while being operated on (TSN,
November 24, 1997, pp. 2, 6-7). Dr. Fetalvero issued a Medico-Legal Certificate showing the injuries
sustained by Ricky, thus:

Stab wound, left chest with gastric & transverse colon evisceration measuring 6 cms. long,
irregular-edged at 8th ICS, left penetrating (operative findings):

(1) abdominal cavity perforating the stomach (thru & thru) and the left lobe of the liver

(2) thoracic cavity thru the left dome of the diaphragm perforating the lower lobe of the left
lung.

(Exhibit C)

The Certificate of Death issued by Dr. Fetalvero stated the cause of Ricky’s death as:

CAUSES OF DEATH:

Immediate cause : a. Cardiorespiratory Arrest

Antecedent cause : b. Hypovolemic shock
Underlying cause : c. Multiple thoraco-abdominal

injury 2º to stab wound

(Exhibit B)4

The Evidence of the Petitioner

The petitioner adduced evidence that at around 5:00 p.m. on September 16, 1995, he was on his way
home at Tuburan, Odiongan, Romblon. He saw his nephew, Ricky Guarte, and the latter’s friends, Michael
Fosana, Rex Cortez, and Lani Famero, about five meters away from his house, having a drinking spree. He
ordered them not to make loud noises, and they obliged. He then went to his house, locked the door with
a nail, and went to sleep. However, he was awakened at around 9:30 p.m. by loud noises coming from
Ricky and his three companions. He peeped through the window grills of his house and admonished them
not to make any loud noises. Ricky, who was then already inebriated, was incensed; he pulled out a
balisong, pushed the door, and threatened to stab the petitioner. The petitioner pushed their sala set
against the door to block the entry of Ricky, but the latter continued to push the door open with his hands
and body. The petitioner ran to the upper portion of their house and got his bolo.5 He returned to the door
and pushed it with all his might using his left hand. He then pointed his bolo, which was in his right hand,
towards Ricky. The bolo accidentally hit Ricky on the stomach, and the latter lost his balance and fell to
the floor. The petitioner, thereafter, surrendered to the barangay captain at 11:00 a.m. on September 17,
1995.

After trial, the court rendered judgment finding the petitioner guilty as charged. The fallo of the decision
reads:

WHEREFORE, premises considered, NOE TOLEDO is hereby found GUILTY beyond reasonable doubt
of homicide with the mitigating circumstance of voluntary surrender and is meted the
indeterminate penalty of from six (6) years and one (1) day of prision mayor minimum, as
minimum, to twelve (12) years and one (1) day of reclusion temporal minimum, as maximum.
 Accused is condemned to pay the amount of ₱50,000.00 as civil liability to the heirs of the victim. 6

The trial court did not give credence and probative weight to the testimony of the petitioner that his bolo
accidentally hit the victim on the stomach.

On appeal in the CA, the petitioner raised the following issue in his brief as appellant:

WHETHER OR NOT ACCUSED-APPELLANT CAN BE CRIMINALLY HELD LIABLE FOR THE ACCIDENTAL
DEATH OF RICKY GUARTE7

Invoking Article 12, paragraph 4 of the Revised Penal Code, the petitioner claimed that he stabbed the
victim by accident; hence, he is exempt from criminal liability for the death of the victim.

The CA rendered judgment affirming the assailed decision with modifications. The CA also denied the
petitioner’s motion for reconsideration thereof. The appellate court ruled that the petitioner failed to prove
that he acted in self-defense.

Aggrieved, the petitioner filed the instant petition for review, contending that the CA erred in not finding
that he acted in self-defense when he stabbed the victim by accident and prays that he be acquitted of the
crime charged.

The sole issue in this case is whether or not the petitioner is guilty beyond reasonable doubt of homicide
based on the evidence on record.

The petitioner contends that the CA committed a reversible error when it affirmed the decision of the RTC
convicting him of homicide, on its finding that he failed to prove that he acted in complete self-defense
when the victim was hit by his bolo. The petitioner insists that he acted in complete self-defense when his
bolo accidentally hit the victim on the stomach.

For its part, the Office of the Solicitor General asserts that the petitioner failed to prove self-defense with
clear and convincing evidence. Hence, the decision of the CA affirming, on appeal, the decision of the RTC
is correct.

The contention of the petitioner has no merit.

The petitioner testified that his bolo hit the victim accidentally. He asserted in the RTC and in the CA that
he is exempt from criminal liability for the death of the victim under Article 12, paragraph 4 of the Revised
Penal Code which reads:

4. Any person who, while performing a lawful act with due care, causes an injury by mere accident
without fault or intention of causing it.

In his brief in the CA, the petitioner argued that:

In the case at bar, with all due respect, contrary to the findings of the lower court, it is our
humble submission that the death of Ricky Guarte was merely a sad and unwanted result of
an accident without fault or intention of causing it on the part of accused-appellant. We
submit, there were clear and indubitable factual indicators overlooked by the lower court,
bolstering the theory of the defense on accidental death. 8

However, the petitioner changed gear, so to speak, and now alleges that he acted in self-defense when he
stabbed the victim. As such, he contends, he is not criminally liable under Article 11, paragraph 1 of the
Revised Penal Code which reads:

Art. 11. Justifying circumstances. – The following do not incur any criminal liability:
 1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it:

Third. Lack of sufficient provocation on the part of the person defending himself.

The petitioner avers that he was able to prove the essential elements of complete self-defense,
thus:

A close scrutiny of the records of the case would show that the petitioner acted in self-
defense.

The essential requisites of self-defense are: (1) unlawful aggression on the part of the victim; (2)
reasonable scrutiny of the means employed to prevent or repel it; and (3) lack of sufficient
provocation on the part of the person defending himself (People vs. Silvano, 350 SCRA 650) 9

However, the petitioner also claims that his bolo accidentally hit the stomach of the victim.

It is a matter of law that when a party adopts a particular theory and the case is tried and decided upon
that theory in the court below, he will not be permitted to change his theory on appeal. The case will be
reviewed and decided on that theory and not approached and resolved from a different point of view. To
permit a party to change his theory on appeal will be unfair to the adverse party. 10

The petitioner is proscribed from changing in this Court, his theory of defense which he adopted in the
trial court and foisted in the CA – by claiming that he stabbed and killed the victim in complete self-
defense. The petitioner relied on Article 12, paragraph 4 of the Revised Penal Code in the trial and
appellate courts, but adopted in this Court two divergent theories – (1) that he killed the victim to defend
himself against his unlawful aggression; hence, is justified under Article 11, paragraph 1 of the Revised
Penal Code; (2) that his bolo accidentally hit the victim and is, thus, exempt from criminal liability under
Article 12, paragraph 4 of the Revised Penal Code.

It is an aberration for the petitioner to invoke the two defenses at the same time because the said
defenses are intrinsically antithetical.11 There is no such defense as accidental self-defense in the realm of
criminal law.

Self-defense under Article 11, paragraph 1 of the Revised Penal Code necessarily implies a deliberate and
positive overt act of the accused to prevent or repel an unlawful aggression of another with the use of
reasonable means. The accused has freedom of action. He is aware of the consequences of his deliberate
acts. The defense is based on necessity which is the supreme and irresistible master of men of all human
affairs, and of the law. From necessity, and limited by it, proceeds the right of self-defense. The right
begins when necessity does, and ends where it ends. 12 Although the accused, in fact, injures or kills the
victim, however, his act is in accordance with law so much so that the accused is deemed not to have
transgressed the law and is free from both criminal and civil liabilities. 13 On the other hand, the basis of
exempting circumstances under Article 12 of the Revised Penal Code is the complete absence of
intelligence, freedom of action, or intent, or the absence of negligence on the part of the accused. 14 The
basis of the exemption in Article 12, paragraph 4 of the Revised Penal Code is lack of negligence and
intent. The accused does not commit either an intentional or culpable felony. The accused commits a
crime but there is no criminal liability because of the complete absence of any of the conditions which
constitute free will or voluntariness of the act.15 An accident is a fortuitous circumstance, event or
happening; an event happening wholly or partly through human agency, an event which under the
circumstances is unusual or unexpected by the person to whom it happens. 16

Self-defense, under Article 11, paragraph 1, and accident, under Article 12, paragraph 4 of the Revised
Penal Code, are affirmative defenses which the accused is burdened to prove, with clear and convincing
evidence. Such affirmative defenses involve questions of facts adduced to the trial and appellate courts for
resolution. By admitting killing the victim in self-defense or by accident without fault or without intention
of causing it, the burden is shifted to the accused to prove such affirmative defenses. He should rely on
the strength of his own evidence and not on the weakness of that of the prosecution. If the accused fails
to prove his affirmative defense, he can no longer be acquitted.

The petitioner failed to prove that the victim was killed by accident, without fault or intention on his part
to cause it. The petitioner was burdened to prove with clear and convincing evidence, the essential
requisites for the exempting circumstance under Article 12, paragraph 4, viz:

1. A person is performing a lawful act;

2. With due care;

3. He causes an injury to another by mere accident;

4. Without fault or intention of causing it.

To prove his affirmative defense, the petitioner relied solely on his testimony, thus:

Q What happened next when Ricky Guarte was able to push through the door and you ran away?

A When Ricky Guarte was able to push the door, that is the time I go (sic) downstairs and got my
bolo and at that time the body of Ricky Guarte was at the entrance of the door and accidentally the
bolo reached him.

Q Where did you get the bolo?

A I got the bolo in the post or wall of our house.

Q Was Ricky Guarte hit the first time you boloed him?

A Not hacking but accidentally.

Q What do you mean by accidentally?

A Because when Ricky Guarte pushed the door and unbalance himself (sic) the bolo which I was
carrying hit him accidentally.

Q Where was he hit by the bolo you were carrying?

A In the stomach.17

Q And since you were at the left side of the door, your right hand was at the center part of the
door, correct?

A No, Sir.

Q Where was your right hand?

A Holding a bolo.

Q Where, in what part of the door?

A Right side.

Q When Ricky Guarte was pushing the door, the door was not opened?

A It was opened.

Q It was opened because you opened the door, correct?

A No, Sir.

Q Now, why was it opened?

A Because he was pushing it.

Q With his left hand?

A With his both hands and body.

Q Now, when he fell down because, according to you, he losses (sic) his balance, the left side of
the body was the first to fell (sic) down, correct?

A Yes, Sir.

Q You are sure of your answer now Mr. Toledo?

A Yes, Sir.

Q Now, and while holding that bolo, you are doing that in [an] upward position, correct?

A No, Sir, pointing the door.

Q Yes, you are pointing the tip of your bolo to the door upward, correct?

A No, Sir, steady pointing to the door.

Q Now, when the door was opened, your bolo did not hit any part of that door, correct?

A "Ginaiwas ko ang sunrang," meaning I was able to get away from hitting any part of the door.

Q The question Mr. Toledo is simple, while the door was opened and while you were pointing
directly your bolo at the door, not any part of the door hit the bolo (sic), correct?

ATTY. FORMILLEZA:

It was a valid answer, it did not hit any part of the door.

COURT:

Answer.

A No, Sir.

PROS. FRADEJAS continuing:

Q You were only about five inches away from your door while pushing it, correct?
 A Yes, Sir.

Q Now, when the door was pushed already by Ricky Guarte, not any part of your body hit the door,
correct?

A No, Sir.18

The petitioner also testified that the victim was armed with a balisong and threatened to kill him as the
said victim pushed, with his body and hands, the fragile door of his house:

Q Where were you when you saw Ricky went out?

A I was at the door.

Q Did Ricky proceed to the door where you were?

A Yes, Sir.

Q What did he do, if any?

A He drew his fan knife or balisong and asked me what do you like, I will stab you?

Q What did you do?

A I told him I have not done you anything wrong, I am only scolding you or telling you not to make
noise.

Q What, if any, did Ricky Guarte do to you?

A He pushed the door.

Q Whose door did he push?

A My own door.

Q Where were you when he pushed the door?

A Inside our house.19

We find the testimony of the petitioner incredible and barren of probative weight.

First. If the testimony of the petitioner is to be believed, the force of the struggle between him and the
victim would have caused the door to fall on the petitioner. However, the petitioner failed to adduce real
evidence that the door of his house was destroyed and that he sustained any physical injuries, 20
considering that he was only five inches away from the door.

Second. If the door fell to the sala of the house of the petitioner, the victim must have fallen on top of the
door. It is incredible that the bolo of the petitioner could have hit the stomach of the victim. The claim of
the petitioner that he managed to step aside and avoid being crushed by the door belies his claim that the
bolo accidentally hit the victim on the stomach.

Third. When he surrendered to the barangay captain and to the policemen, he failed to relate to them that
his bolo accidentally hit the stomach of the victim:
 Q Now, that very night when you said Ricky Guarte was accidentally hit by your bolo, you did not
surrender to the police, correct?

A I surrendered to the barangay captain at one o’clock in Panique, in the afternoon.

Q Now, you only surrendered to the police when a certain person advised you to surrender,
correct?

A On my own volition, I surrendered to the barangay captain.

Q You did not narrate the incident to the barangay captain whom you have surrendered, correct?

A No, Sir.

Q When you were brought to the municipal jail, you did not also narrate to the police what
happened, correct?

A No, Sir.

Q You just remained silent thinking of an excuse that happened that evening of September 16,
1995, correct?

A No, Sir.21

Fourth. There is no evidence that the petitioner surrendered either the bolo that accidentally hit the victim
or the balisong held by the deceased to the barangay captain or the police authorities. Such failure of the
petitioner negates his claim that his bolo accidentally hit the stomach of the victim and that he acted in
self-defense.22

Fifth. To prove self-defense, the petitioner was burdened to prove the essential elements thereof, namely:
(1) unlawful aggression on the part of the victim; (2) lack of sufficient provocation on the part of the
petitioner; (3) employment by him of reasonable means to prevent or repel the aggression. Unlawful
aggression is a condition sine qua non for the justifying circumstances of self-defense, whether complete
or incomplete.23 Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent
danger thereof, and not merely a threatening or intimidating attitude. 24 We agree with the ruling of the CA
that the petitioner failed to prove self-defense, whether complete or incomplete:

The evidence on record revealed that there is no unlawful aggression on the part of Ricky. While it
was established that Ricky was stabbed at the doorstep of appellant’s house which would give a
semblance of verity to appellant’s version of the incident, such view, however, is belied by the fact
that Ricky arrived at appellant’s house unarmed and had only one purpose in mind, that is, to ask
appellant why he threw stones at his (Ricky’s) house. With no weapon to attack appellant, or
defend himself, no sign of hostility may be deduced from Ricky’s arrival at appellant’s doorstep.
Ricky was not threatening to attack nor in any manner did he manifest any aggressive act that may
have imperiled appellant’s well-being. Ricky’s want of any weapon when he arrived at appellant’s
doorstep is supported by the fact that only one weapon was presented in court, and that weapon
was the bolo belonging to appellant which he used in stabbing Ricky. Thus, appellant’s version of
the events does not support a finding of unlawful aggression. In People vs. Pletado, the Supreme
Court held:

"xxx (F) or aggression to be appreciated, there must be an actual, sudden, [un]expected

attack or imminent danger thereof, and not merely a threatening or intimidating attitude
(People vs. Pasco, Jr., supra, People vs. Rey, 172 SCRA 149 [1989]) and the accused must
present proof of positively strong act of real aggression (Pacificar vs. Court of Appeals, 125
SCRA 716 [1983]). Unlawful aggression must be such as to put in real peril the life or
personal safety of the person defending himself or of a relative sought to be defended and
not an imagined threat."
Appellant was not justified in stabbing Ricky. There was no imminent threat to appellant’s life
necessitating his assault on Ricky. Unlawful aggression is a condition sine qua non for the justifying
circumstance of self-defense. For unlawful aggression to be appreciated, there must be an actual, sudden,
unexpected attack or imminent danger thereof, not merely a threatening or intimidating attitude. In the
absence of such element, appellant’s claim of self-defense must fail.

Further, appellant’s plea of self-defense is not corroborated by competent evidence. The plea of self-
defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent
evidence but is in itself extremely doubtful.25

Sixth. With the failure of the petitioner to prove self-defense, the inescapable conclusion is that he is
guilty of homicide as found by the trial court and the CA. He cannot even invoke Article 12, paragraph 4 of
the Revised Penal Code.26

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of
Appeals is AFFIRMED. Costs against the petitioner.

SO ORDERED.
 THIRD DIVISION

G.R. No. 189405 November 19, 2014

SHERWIN DELA CRUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and CARLOS ALBERTO L. GONZALES, in behalf of his deceased
brother, JEFFREY WERNHER L. GONZALES, Respondents.

DECISION

PERALTA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to annul and set
aside the May 7, 2009 Decision1 of the Court of Appeals, in CA-G.R. CV No. 89257, finding petitioner
Sherwin Dela Cruz guilty beyond reasonable doubt of the crime of Homicide, and its August 19, 2009
Resolution2 denying his motion for reconsideration.

Petitioner was charged with the crime of Homicide in an Information3 dated March 2, 2005, which alleged:

That on or about the 1st day of January 2005, in the City of Makati, Philippines and within the jurisdiction
of this Honorable Court, the abovenamed accused, with intent to kill and with the use of an unlicensed
firearm, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one JEFFREY
WERNHER GONZALES Y LIM on the head, thereby inflicting upon the latter serious and moral gunshot
wound which directly caused his death.

CONTRARY TO LAW.4

According to the prosecution, on January 1, 2005, at around 2:30 in the afternoon, petitioner went to the
office of Sykes Asia Inc. located at the 25th Floor of Robinson’s Summit Center,Ayala Avenue, Makati City.
When petitioner was already inside the building, he went to the work station of the deceased victim,
Jeffrey Wernher L. Gonzales (Jeffrey), who, by the configuration of the eye witness Antonette
Managbanag’s sketch, was seated fronting his computer terminal, with his back towards the aisle. As
petitioner approached Jeffrey from the back, petitioner was already holding a gun pointed at the back of
Jeffrey’s head. At the last second, Jeffrey managed to deflect the hand of petitioner holding the gun, and a
short struggle for the possession of the gun ensued thereafter. Petitioner won the struggle and remained
in possession of the said gun. Petitioner then pointed the gun at Jeffrey’s face, pulled the trigger four (4)
times, the fourth shot finally discharging the bullet that hit Jeffrey in the forehead, eventually killing him.
Finally, after shooting Jeffrey, petitioner fled the office.

The defense recounted a different version of the facts.

Petitioner claimed that on January1, 2005, at around 2:30 in the afternoon, more or less, petitioner,
together with his children, went to Sykes Asia, the workplace of his wife, Darlene Dela Cruz (Darlene),
located at the 25th Floor of Robinson’s Summit Building in Makati City, to fetch the latter so that their
family could spend time and celebrate together the New Year’s Day. Before entering the Robinson’s
Summit Building, petitioner underwent the regular security check-up/procedures. He was frisked by the
guards-on-duty manning the main entrance of said building and no firearm was found in his possession.
He registered his name at the security logbook and surrendered a valid I.D.

Upon reaching the 25th Floor of the same building, a security guard manning the entrance once again
frisked petitioner and, likewise, found no gun in his possession; hence, he was allowed to enter the
premises of Sykes Asia. The security guard also pointed to him the direction towards his wife’s table.

However, as Darlene was then not on her table, petitioner approached a certain man and asked the latter
as to the possible whereabouts of Darlene. The person whom petitioner had talked towas the deceased-
victim, Jeffrey. After casually introducing himself as the husband of Darlene, Jeffrey curtly told him, "Bakit
mo hinahanap si Darlene?"to which he answered, "Nagpapasundo kasi sa akin."The response given by
Jeffrey shocked and appalled petitioner: "Ayaw na nga ng asawa mo sayo sinusundo mo pa!"

Shocked by the words and reaction of Jeffrey, petitioner tried to inquire from Jeffrey who he was. But
Jeffrey suddenly cursed petitioner. Then, Jeffrey suddenly picked up something in his chair which
happened to be a gun and pointed the same at petitioner’s face followed by a clicking sound. The gun,
however, did not fire.

Seeing imminent danger to his life,petitioner grappled with Jeffrey for the possession of the gun.While
grappling, the gunclicked for two (2) to three (3) more times. Again, the gun did not fire.

Petitioner was able to wrest away the gun from Jeffrey and tried to run away to avoid any further
confrontation with the latter.However, Jeffrey immediately blocked petitioner’s path and shouted, "Guard!
Guard!" Immediately then, Jeffrey took hold ofa big fire extinguisher, aimed and was about to smash the
same on petitioner’s head.

Acting instinctively, petitioner parried the attack while still holding the gun. While in the act of parrying,
the gun accidentally fired due to the reasonable force and contact that his parrying hand had made with
the fire extinguisher and the single bullet discharged hit the forehead of Jeffrey, which caused the latter to
fall on the floor and die.

Petitioner left the gun and went out ofthe premises of Sykes Asia and proceeded towards the elevator. On
his way to the elevator, he heard Darlene shout, "Sherwin anong nangyari?", but he was not able to
answer.

After said incident, Darlene abandoned petitioner and brought with her their two (2) young children.
Petitioner later learned that Darlene and Jeffrey had an illicit relationship when he received a copy of the
blog of Darlene, dated January 30, 2005, sent by his friend.

During his arraignment, on August 22, 2005, petitioner, with the assistance of counsel, pleaded "Not
Guilty" to the charge. Thereafter, pretrial conference was conducted on even date and trial on the merits
ensued thereafter.

During the trial of the case, the prosecution presented the oral testimonies of Marie Antonette
Managbanag (Managbanag), Maria Angelina Pelaez (Pelaez) and Carlos Alberto Lim Gonzales (Gonzales),
respectively. The prosecution likewise formally offered several pieces of documentary evidence to support
its claim.

For its part, the defense presented aswitnesses, petitioner himself; his brother, Simeon Sander Dela Cruz
III (Cruz), Greg Lasmarias Elbanvuena (Elbanvuena) and Managbanag, who was recalled to the witness
stand as witness for the defense.

On February 26, 2007, the Regional Trial Court (RTC)of Makati City, Branch 147, rendered a Decision5
finding petitioner guilty beyond reasonable doubt of the crime of Homicide, as defined and penalized under
Article 249 of the Revised Penal Code (RPC), the fallo thereof reads:

WHEREFORE, Judgment is rendered finding herein accused Sherwin Dela Cruz y Gloria Guilty beyond
reasonable doubt of the crime of Homicide as defined and penalized under Art. 249 of the Revised Penal
Code, and sentencing him to suffer the indeterminate penalty of Eight (8) years and One (1) day of prision
mayor medium as Minimum to Fourteen (14) years eight (8) months and one (1) day of reclusion
temporal medium as Maximum; to indemnify the Heirs of Jeffrey Wernher Gonzales y Lim in the amount
of ₱50,000.00 plus moral damages in the amount of ₱1 Million, and to pay the costs.

SO ORDERED.6
On March 28, 2007, petitioner filed a Notice of Appeal, while private respondent, through the private
prosecutor, filed a Notice of Appeal on April 11, 2007 insofar as the sentence rendered against petitioner
is concerned and the civil damages awarded.

After the denial of their motion for reconsideration, petitioner elevated the case to the Court of Appeals
(CA). However, the latter denied their appeal and affirmed the RTC decision with modification on the civil
liability of petitioner. The decretal portion of the Decision7 reads: WHEREFORE, we hereby AFFIRM the
Decision of the Regional Trial Court of Makati, Branch 147 dated 26 February 2007 finding accused-
appellant Sherwin Dela Cruz y Gloria GUILTY beyond reasonable doubt of the crime ofHomicide with the
following MODIFICATIONS:

(1) to pay the heirs of the victim the amount of ₱50,000.00 as civil indemnity;

(2) the amount of ₱50,000.00 as moral damages;

(3) the amount of ₱25,000.00 as temperate damages;

(4) the amount of ₱3,022,641.71 as damages for loss of earning capacity.

(5) to pay the costs of the litigation.

SO ORDERED.8

Petitioner's motion for reconsideration was denied. Hence, the present petition.

Raised are the following issues for resolution:

1. WHETHER ALL THE REQUISITES OF THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE, AS

PROVIDED FOR BY LAW AND SETTLED JURISPRUDENCE, ARE PRESENT IN THIS CASE.

2. WHETHER THE FIRING OF THE GUN WHEREIN ONLY A SINGLE BULLET WAS DISCHARGED
THEREFROM WAS MERELY ACCIDENTAL WHICH OCCURRED DURING THE TIME THAT THE
PETITIONER-APPELLANT WAS STILL IN THE ACT OF DEFENDING HIMSELF FROM THE CONTINUOUS
UNLAWFUL AGGRESSION OF THE DECEASED VICTIM.

3. WHETHER THE PROSECUTION WAS ABLE TO PROVE ALL THE ESSENTIAL ELEMENTS
CONSTITUTING THE CRIME OF HOMICIDE.

4. WHETHER THE PRIVILEGED MITIGATING CIRCUMSTANCE OF SELF-DEFENSE IS APPLICABLE IN

THIS CASE.

5. WHETHER PETITIONER-APPELLANT MAY BE HELD CIVILLY LIABLE FOR THE DEATH OF THE
VICTIM ARISING FROM THE ACCIDENT THAT TRANSPIRED.9

There is no question that petitioner authored the death of the deceased-victim, Jeffrey. What is leftfor
determination by this Court is whether the elements of self-defenseexist to exculpate petitioner from the
criminal liability for Homicide.

The essential requisites of self-defense are the following: (1) unlawful aggression on the part of the
victim; (2) reasonable necessity of the means employed to prevent or repel such aggression; and (3)
lackof sufficient provocation on the part of the person resorting to self-defense.10 In other words, there
must have been an unlawful and unprovoked attack that endangered the life of the accused, who was
then forced to inflict severe wounds upon the assailant by employing reasonable means to resist the
attack.11
Considering that self-defense totally exonerates the accused from any criminal liability, it is well settled
thatwhen he invokes the same, it becomes incumbent upon him to prove by clear and convincing evidence
that he indeed acted in defense of himself.12 The burden of proving that the killing was justified and that
he incurred no criminal liability therefor shifts upon him.13 As such, he must rely on the strength of his
own evidence and not on the weakness of the prosecution for, even if the prosecution evidence is weak, it
cannot be disbelieved after the accused himself has admitted the killing.14

Measured against this criteria, wefind that petitioner's defense is sorely wanting. Hence, his petition must
be denied.

First. The evidence on record does not support petitioner's contention that unlawful aggression was
employed by the deceased-victim, Jeffrey, against him.

Unlawful aggression is the most essential element of self-defense. It presupposes actual, sudden,
unexpected or imminent danger — not merely threatening and intimidating action.15 There is aggression,
only when the one attacked faces real and immediate threat to his life.16 The peril sought to be avoided
must be imminent and actual, not merely speculative.17 In the case at bar, other than petitioner’s
testimony, the defense did not adduce evidence to show that Jeffrey condescendingly responded to
petitioner’s questions or initiated the confrontation before the shooting incident; that Jeffrey pulled a gun
from his chair and tried to shoot petitioner but failed — an assault which may have caused petitioner to
fear for his life.

Even assuming arguendothat the gun originated from Jeffrey and an altercation transpired, and therefore,
danger may have in fact existed, the imminence of that danger had already ceased the moment petitioner
disarmed Jeffrey by wresting the gun from the latter. After petitioner had successfully seized it, there was
no longer any unlawful aggression to speak of that would have necessitated the need to kill Jeffrey. As
aptly observed by the RTC, petitioner had every opportunity to run away from the scene and seek help but
refused to do so, thus:

In this case, accused and the victim grappled for possession of the gun.1avvphi1 Accused admitted that
he wrested the gun from the victim. From that point in time until the victim shouted "guard, guard", then
took the fire extinguisher, there was no unlawful aggression coming from the victim. Accused had the
opportunity to run away. Therefore, even assuming that the aggression with use of the gun initially came
from the victim, the fact remains that it ceased when the gun was wrested away by the accused from the
victim. It is settled that when unlawful aggression ceases, the defender no longer has any right to kill or
wound the former aggressor, otherwise, retaliation and not self-defense is committed (Peo Vs. Tagana,
424 SCRA 620). A person making a defense has no more right to attack an aggressor when the unlawful
aggression has ceased (PeoVs. Pateo, 430 SCRA 609).

Accused alleged that the victimwas about to smash the fire extinguisher on his (accused’s) headbut he
parried it with his hand holding the gun. This is doubtful as nothing in the records is or would be
corroborative of it.In contrast, the two (2) Prosecution witnesses whose credibility was not impeached,
both gave the impression that the victim got the fire extinguisher to shieldhimself from the accused who
was then already in possession of the gun.18

Thus, when an unlawful aggression that has begun no longer exists, the one who resorts to self-defense
has no right to kill or even wound the former aggressor.19 To be sure, when the present victim no longer
persisted in his purpose or action to the extent that the object of his attack was no longer in peril, there
was no more unlawful aggression that would warrant legal self-defense on the part of the offender.20
Undoubtedly, petitioner went beyond the call of self-preservation when he proceeded to inflict excessive,
atrocious and fatal injuries on Jeffrey, even when the allegedly unlawful aggression had already ceased.

More, a review of the testimony of the prosecution witness, Pelaez, will show that if there was unlawful
aggression in the instant case, the same rather emanated from petitioner, thus: DIRECT EXAMINATION

Atty. Mariano:
Q: Can you relate to the Court, Ms. Witness, how did this incident happen?

A: We were still at work, we were expecting calls but there were no calls at the moment and I was
standing at my work station and then Sherwin approached Jeff and he pointed a gun at the back of the
head of Jeff.

Q: And then what happened?

A: And then Jeff parried the gun and they started struggling for the possession of the gun.

Q: How far were you from this struggle when you witnessed it?

A: Probably 10 to 12 feet.

Q: Going back to your story, Ms. Witness, you mentioned that after Jeffrey warded off the gun, they
started to struggle, what happened after that, if any?

A: After they struggled, the gun clicked three times and then after that Jeff tried to get hold of the fire
extinguisher and the fourth shot went off and then Jeffrey fell down.

Q: And who was holding the gun?

A: Sherwin was holding the gun. (TSN, Oct. 17, 2005, pp. 12-14) CROSS-EXAMINATION: Atty. Agoot:

Q: So you did not see when Sherwin approached Jeffrey because he came from the other side? Atty.
Mariano:

Objection, your Honor, witness already answered that.

Atty. Agoot:

I am on cross examination, your Honor.

COURT

You didn’t not see when he approached Jeffrey? A: No, as I said, I saw him point the gun at the back of
Jeff and he did not come from my side so that means…

COURT

No, the question is, You did not actually see Sherwin approached Jeffrey?

A: I saw him already at the back of Jeffrey.

Atty. Agoot

He was already at the back of Jeffrey when you saw him?

A: Yes, Sir.

(TSN, Oct. 17, 2005, pp. 26-27)21

Clearly, petitioner's allegation that when he approached Jeffrey, the latter pulled a gun from his chair and
tried to shoot him, is not corroborated by separate competent evidence. Pitted against the testimony of
prosecution witnesses, Managbanag and Pelaez, it pales incomparison and loses probative value. We have,
on more thanone occasion, ruled that the plea of self-defense cannot be justifiably entertained where it is
not only uncorroborated by any separate competent evidence but also extremely doubtful in itself.22

In addition, other than petitioner’s testimony, there is dearth of evidence showing that the alleged
unlawful aggression on the part of Jeffrey continued when he blocked the path of petitioner while the
latter tried to run away to avoid further confrontation with Jeffrey. We also agree with the findings of the
RTC that there was no proof evincing that Jeffrey aimed and intended to smash the big fire extinguisher
on petitioner’s head. Alternatively, the prosecution witnesses maintained an impression that Jeffrey used
the same to shield himself from petitioner who was then in possession of the gun, a deadly weapon. An
excerpt of the testimony of Managbanag bares just that, to wit:

Atty. Agoot

Q: And then after pulling the fire extinguisher from the wall Jeffrey again faced the person who was
holding the gun already?

Witness:

A: He was holding the fire extinguisher like this.

COURT

For the record.

Atty. Mariano:

Witness demonstrating how the victim Jeffrey Gonzales was holding the fire extinguisher upright with his
right hand above the fire extinguisher and his left hand below the fire extinguisher.

Witness:

The left hand would support the weight basically.

Atty. Agoot

Q: And then he used that fire extinguisher to protect himself from the slapping of that person who was in
possession of the gun?

Witness

A: Yes, sir.

Atty. Agoot

Q: And then after that there was again a grappling?

Witness

A: No more grappling for possession. Because Jeffrey was still holding the fire extinguisher at thattime.
And then he fell holding on to the fire extinguisher.

Atty. Agoot

Q: You said here which I quote "binaril siya ng lalaki ng sunod-sunod pero hindi pumutok" Do you
affirmand confirm this statement?
Witness

A: Yes, sir. They were pushing each other. The other person was trying to point the gun at Jeffrey and
Jeffrey was trying to cover himself with the fire extinguisher so nagkakatulakan sila at the same time.

Atty. Agoot

Q: You said that the gun clicked, how many times did the gun click without firing?

Witness

A: Three (3) times, sir.

Atty. Agoot

Q: And what did the late Jeffrey do when the gun clicked but did not fire?

Witness

A: They were still pushing each other at that time.

Atty. Agoot

Q: Using the fire extinguisher, heused that to push against the person…

Witness

A: Basically trying to cover himself and trying to push away the person who was pointing the gun at him.

Atty. Agoot

Q: And why do you know that Jeffrey was trying hard to push the fire extinguisher?

Witness

A: Because I was seated roughly about 5 to 6 feet away from them. So I clearly saw what was going on at
that time.

(Direct Examination of Marie Antonette Managbanag for the Defense, TSN dated 04 September 2006, pp.
12-17, emphasis supplied)23

Petitioner’s contention that Jeffrey’s unlawful aggression was continuous and imminent is, therefore,
devoid of merit.

Given that the criteria of unlawful aggression is indubitably absent in the instant case, the severe wounds
inflicted by petitioner upon Jeffrey was unwarranted and, therefore, cannot be considered a justifying
circumstance under pertinent laws and jurisprudence.

Second. Even assuming that the unlawful aggression emanated from the deceased victim, Jeffrey, the
means employed by petitioner was not reasonably commensurate to the nature and extent of the alleged
attack, which he sought to avert. As held by the Court in People v. Obordo:24

Even assuming arguendo that there was unlawful aggression on the part of the victim, accused-appellant
likewise failed to prove that the means he employed to repel Homer's punch was reasonable. The means
employed by the person invoking self-defense contemplates a rational equivalence between the means of
attack and the defense. Accused appellant claimed that the victim punched him and was trying to get
something from his waist, so he (accused-appellant) stabbed the victim with his hunting knife. His act of
immediately stabbing Homer and inflicting a wound on a vital part ofthe victim's body was unreasonable
and unnecessary considering that, as alleged by accused-appellant himself, the victim used his bare fist in
throwing a punch at him.25

Indeed, the means employed by a person resorting to self-defense must be rationally necessary to
prevent or repel an unlawful aggression. The opposite was, however, employed by petitioner, as correctly
pointed out by the RTC, thus:

The victim was holding the fire extinguisher while the second was holding the gun. The gun and the
discharge thereof was unnecessary and disproportionate to repel the alleged aggression with the use of
fire extinguisher. The rule is that the means employed by the person invoking self-defense contemplates a
rational equivalence between the means of attack and the defense (Peo vs. Obordo, 382 SCRA 98).

It was the accused who was in a vantage position as he was armed with a gun, as against the victim who
was armed, so to speak, with a fire extinguisher, which is not a deadly weapon. Under the circumstances,
accused’s alleged fear was unfounded. The Supreme Court has ruled that neither an imagined impending
attack nor an impending or threatening attitude is sufficient to constitute unlawful aggression (Catalina
Security Agency Vs. Gonzales-Decano, 429 SCRA 628). It is a settled rule that to constitute aggression,
the person attacked must be confronted by a real threat on his lifeand limb; and the peril sought to be
avoided is imminent and actual, not merely imaginary (Senoja v. Peo., 440 SCRA 695).26

If petitioner had honestly believed that Jeffrey was trying to kill him, he should have just run, despite any
obstruction, considering that he was already in possession of the gun. He could have also immediately
sought help from the people around him, specifically the guard stationed at the floor where the shooting
incident happened. In fact, he could have reported the incident to the authorities as soon as he had
opportunity to do so, if it was indeed an accident or a cry of self-preservation. Yet, petitioner never did
any of that.

We find it highly specious for petitioner to go through the process of tussling and hassling with Jeffrey,
and inthe end, shooting the latter on the forehead, not only once, but four times, the last shot finally
killing him, if he had no intention to hurt Jeffrey. Thus:

Moreover, the Prosecution’s eyewitnesses were consistent in declaring that while there was prior struggle
for the possession of the gun, it was nevertheless accused who was holding the gun at the time of the
actual firing thereof (TSN, p. 30, October 10, 2005; TSN, p. 14, October 17, 2005). Witness Managbanag
even alleged that while the victim (Jeffrey), who was in possession of the fire extinguisher, and the
accused were pushing each other, accused pointed the gun at the victim. She heard three (3) clicks and
on the 4th , the gun fired (TSN, p. 12, October 10, 2005). Under the circumstances, it cannot be safely
said that the gun was or could have been fired accidentally. The discharge of the gun which led to the
victim’s death was no longer made in the course of the grapple and/or struggle for the possession of the
gun.27

The observation of the RTC dispels any doubt that the gun may have been shot accidentally to the
detriment of Jeffrey. The fire was neither a disaster nor a misfortune of sorts. While petitioner may
nothave intended to kill Jeffrey at the onset, at the time he clicked the trigger thrice consecutively, his
intent to hurt (or even kill) Jeffrey was too plain to be disregarded. We have held in the pastthat the
nature and number of wounds are constantly and unremittingly considered important indicia which
disprove a plea of self-defense.28 Thus, petitioner’s contention that an accident simultaneously occurred
while hewas in the act of self-defense is simply absurd and preposterous at best. There could nothave
been an accident because the victim herein suffered a gunshot wound on his head, a vital part of the body
and, thus, demonstrates a criminal mind resolved to end the life of the victim.

Besides, petitioner’s failure to inform the police of the unlawful aggression on the part of Jeffrey and to
surrender the gun that he used to kill the victim militates against his claim of self-defense.29
In view of the foregoing, we find it illogical to discuss further the third element of self-defense since it is
recognized that unlawful aggression is a conditio sine qua nonfor upholding the justifying circumstance of
self-defense.30 If there is nothing to prevent or repel, the other two requisites of self-defense will have no
basis.31 Hence, there is no basis to entertain petitioner’s argument that a privileged mitigating
circumstance of selfdefense is applicable in this case, because unless the victim has committed unlawful
aggression against the other, there can be no self-defense, complete or incomplete, on the part of the
latter.32

Anent petitioner’s argument thatthe RTC erred when it failed to consider as suppression of evidence the
prosecution’s alleged deliberate omission to present the testimonies of the security guards-on-duty at the
time of the shooting incident, the same fails to persuade. We concur with the decision of the CA on this
point, to wit:

Having admitted the killing of the victim, the burden of evidence that he acted in self-defense, shifted to
accused-appellant Dela Cruz. He must rely on the strength of his own evidence and not on the weakness
of the prosecution’s evidence, for, even if the latter were weak, it could not be disbelieved after his open
admission of responsibility for the killing.

The security guards on duty at the time of the subject incident were at the disposal of both the
prosecution and the defense. The defense did not proffer proof that the prosecution prevented the security
guards from testifying. There is therefore no basis for it to conclude that the prosecution is guilty of
suppression of evidence.

The defense could have easily presented the security guards if it is of the opinion that their [the security
guards] testimonies were vital and material to the case of the defense. It could have compelled the
security guards on duty to appear before the court. xxx.33

It is worthy to note that the question of whether petitioner acted in self-defense is essentially a question
of fact.34 It is the peculiar province of the trial court to determine the credibility of witnesses and related
questions of fact because of its superior advantage in observing the conduct and demeanor of witnesses
while testifying.35 This being so and in the absence of a showing that the CA and the RTC failed to
appreciate facts or circumstances of such weight and substance that would have merited petitioner's
acquittal, this Court finds no compelling reason to disturb the ruling of the CA that petitioner did not act in
self-defense.36

In this regard, we do not subscribe to petitioner’s contention that since the incident transpired in Jeffrey’s
office, and the witnesses presented by the prosecution are known officemates of Jeffrey, the witnesses are
expected to testify in favor of Jeffrey and against petitioner. Ascorrectly pointed out by respondent, there
appears no motive on the part of the prosecution witnesses to falsely testify against petitioner.37 The fact
that they are officemates of Jeffrey does not justify a conclusion that Managbanag and Pelaez would
concoct or fabricate stories in favorof Jeffrey for the mere purpose of implicating petitioner with such a
serious crime, especially since they are testifying under oath.

All told, we find no basis to doubt ordispute, much less overturn, the findings of the RTC and the CA that
the elements of homicide are present in the instant case as amply shown by the testimonies of the
prosecution eyewitnesses, and they constitute sufficient proof of the guilt of petitioner beyond cavil or
doubt.

Nevertheless, with regard to the appreciation of the aggravating circumstance of use of an unlicensed
firearm, we deviate from the findings of the CA. A perusal of the Information will show that the use of
unlicensed firearm was expressly alleged in the killing of Jeffrey. This allegation was further proved during
trial by the presentation of the Certification from the PNP Firearms and Explosives Division, dated
November 11, 2005, certifying that petitioner is not a licensed/registered firearm holder of any kind and
calibre, per verification from the records of the said Division. Accordingly, under Paragraph 3 of Section 1
of Republic Act (R.A.) No. 8294, amending Section 1 of Presidential Decree (P.D.) No. 1866, such use of
an unlicensed firearm shall be considered as an aggravating circumstance, to wit:
 xxxx

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.

x x x x.

Under Article 249 of the RPC, the penalty for homicide is reclusion temporal. There being an aggravating
circumstance of use of unlicensed firearm, the penalty imposable on petitioner should be in its maximum
period.38 Applying the Indeterminate Sentence Law, the petitioner shall be sentenced to an indeterminate
penalty of from ten (10) years and one (1) day of prision mayor maximum, as the minimum penalty, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal maximum, as the maximum
penalty.

As to the award of civil indemnity, moral damages, and damages for loss of earning capacity in favor
ofprivate respondent, we sustain the findings of the CA in so far as they are in accordance with prevailing
jurisprudence. In addition, we find the grant of exemplary damages in the present case in order, since the
presence of special aggravating circumstance of use of unlicensed firearm has been established.39 Based
on current jurisprudence, the award of exemplary damages for homicide is ₱30,000.00.40

Finally, pursuant to this Court’s ruling in Nacar v. Gallery Frames,41 an interest of six percent (6%) per
annum on the aggregate amount awarded for civil indemnity and damages for loss of earning capacity
shall be imposed, computed from the time of finality of this Decision until full payment thereof.

WHEREFORE, the petition is DENIED. The May 7, 2009 Decision and August 19, 2009 Resolution of the
Court of Appeals in CA-G.R. CV No. 89257, finding petitioner Sherwin Dela Cruz guilty beyond reasonable
doubt of the crime of Homicide, are hereby AFFIRMED with MODIFICATIONS, to wit:

(1) Petitioner shall be sentenced to an indeterminate penalty of from ten (10) years and one (1) day of
prision mayor maximum, as the minimum penalty, to seventeen (17) years, four (4) months and one (1)
day of reclusion temporal maximum, as the maximum penalty;

(2) Petitioner is likewise ORDERED to pay the heirs of the victim the following:

a. the amount of ₱50,000.00 as civil indemnity;

b. the amount of ₱50,000.00 as moral damages;

c. the amount of ₱25,000.00 as temperate damages;

d. the amount of ₱30,000.00 as exemplary damages;

e. the amount of ₱3,022,641.71 as damages for loss of earning capacity;

f. for the civil indemnity and the damages for loss of earning capacity, an interest of six
percent (6%) per annum, computed from the time of finality of this Decision until full
payment thereof; and

g. the costs of the litigation.

SO ORDERED.
 SECOND DIVISION

G.R. No. 170462, February 05, 2014

RODOLFO GUEVARRA AND JOEY GUEVARRA, Petitioners, v. PEOPLE OF THE PHILIPPINES,

Respondent.

DECISION

BRION, J.:

We review in this petition for review on certiorari1 the decision2 dated October 24, 2005 of the Court of
Appeals (CA) in CA–G.R. CR No. 28899. The CA affirmed, with modification on the amount of damages,
the joint decision3 dated April 16, 2004 of the Regional Trial Court (RTC), Branch 20, Cauayan City,
Isabela, finding Rodolfo Guevarra and Joey Guevarra (petitioners) guilty beyond reasonable doubt of the
crimes of frustrated homicide and homicide.

Factual Antecedents

Rodolfo and his son, Joey, were charged with the crimes of frustrated homicide and homicide under two
Informations which read:

In Criminal Case No. Br. 20–1560 for Frustrated Homicide:chanRoblesvirtualLawlibrary

That on or about the 8th day of January, 2000, in the municipality of Alicia, province of Isabela,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring, confederating
together and helping one another, with intent to kill and without any just motive, did then and there,
willfully, unlawfully and feloniously, assault, attack, hack and stab for several times with a sharp pointed
bolo one Erwin Ordoñez, who as a result thereof, suffered multiple hack and stab wounds on the different
parts of his body, which injuries would ordinarily cause the death of the said Erwin Ordoñez, thus,
performing all the acts of execution which should have produced the crime of homicide as a consequence,
but nevertheless, did not produce it by reason of causes independent of their will, that is, by the timely
and able medical assistance rendered to the said Erwin Ordoñez, which prevented his
death.4ChanRoblesVirtualawlibrary
In Criminal Case No. Br. 20–1561 for Homicide:chanRoblesvirtualLawlibrary
That on or about the 8th day of January, 2000, in the municipality of Alicia, province of Isabela,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring, confederating
together and helping one another, with intent to kill and without any just motive, did then and there,
willfully, unlawfully and feloniously, assault, attack, hack and stab for several times with. sharp pointed
bolo one David Ordoñez, who as. result thereof, suffered multiple hack and stab wounds on the different
parts of his body which directly caused his death. 5ChanRoblesVirtualawlibrary
Although the informations stated that the crimes were committed on January 8, 2000, the true date of
their commission is November 8, 2000, as confirmed by the CA through the records. 6 The parties failed to
raise any objection to the discrepancy.7cralawred

On arraignment, the petitioners pleaded not guilty to both charges.8 The cases were jointly tried with the
conformity of the prosecution and the defense. At the pre–trial, the petitioners interposed self–defense,
which prompted the RTC to conduct reverse trial of the case. 9 During the trial, the parties presented
different versions of the events that transpired on November 8, 2000.

Version of the Defense

To prove the petitioners’ claim of self–defense, the defense presented the testimonies of Rodolfo, Joey,
and the petitioners’ neighbor, Balbino Agustin.

Testimony of Rodolfo

Rodolfo, who was then fifty–five (55) years old, narrated that, at around 11:00 p.m., on November 8,
2000, brothers Erwin Ordoñez and David Ordoñez, together with their companion, Philip Vingua, forced
their way into his compound and threw stones at his house and tricycle. Through the back door of his
house, Rodolfo went down to the basement or “silung” and shouted at the three men to stop. David saw
him, threatened to kill him, and struck him with a “panabas,” hitting him on the palm of his left hand.
Rodolfo responded by reaching for the bolo tucked in the “solera” of his house, and hacked and stabbed
Erwin and David until the two brothers fell to the ground. Upon seeing Erwin and David lying on the
ground, Rodolfo called on someone to bring the brothers to the hospital. He stayed in his house until the
policemen arrived.

Testimony of Joey

Joey, who was then thirty–one (31) years old, narrated that, at around 11:00 p.m., on November 8,
2000, he was awakened by the sound of stones being thrown at their house in Bliss, Paddad, Alicia,
Isabela. Through the window, he saw Erwin, David and Philip breaking into their gate, which was made of
wood and interlink wire and located five (5) to six (6) meters away from their house. He then heard his
father Rodolfo say to the three men, “kung ano man ang problema bukas na natin pag–usapan[,]”10 and
David retorted in their dialect, ”Okininam nga lakay adda ka gayam dita, patayin taka[.]”11cralawred

Testimony of Balbino

Balbino narrated that, from inside his house in Bliss, Paddad, Alicia, Isabela, at around 10:00 p.m., on
November 8, 2000, he heard. person from the outside saying “Sige banatan ninyo na[.]” 12 He opened his
door and saw David, Erwin and Philip throwing stones at the house of his neighbor Crisanto Briones.
Briones got mad and scolded the three men, “Why are you hitting my house? Why don’t you hit the house
of your enemy, mga tarantado kayo!”13 David, Erwin and Philip then aimed their stones at the petitioners’
house. Balbino heard David calling out to Joey, “Joey,kung tunay kang lalaki lumabas ka diyan sa kalsada
at dito tayo magpatayan[,]”14 but no one came out of Rodolfo’s house. The stoning lasted for about thirty
(30) minutes.

Afterwards, Balbino saw David, Erwin and Philip destroy Rodolfo’s gate and pull the gate towards the road.
He heard David say to his companions, “koberan ninyo ako at papasok kami[.]”15 David, Erwin and Philip
entered the petitioners’ compound and damaged Rodolfo’s tricycle with stones and their “panabas.” Also,
he heard Rodolfo say to David in Filipino that they could just talk about their problems with him the
following day. But David approached Rodolfo and hacked him with a “panabas.” Rodolfo parried the blow
with the back of his hand, and David and Rodolfo struggled for the possession of the “panabas.”

Balbino also saw Erwin hit Rodolfo on the face with a stone and Joey was hit on his right foot, causing
Rodolfo and Joey to retreat to the “silung” of their house from where Rodolfo got “something shiny,” and
with it stabbed David and Erwin. He saw the two brothers fall to the ground.

Version of the Prosecution

As its rebuttal witness, the prosecution presented the sole testimony of Erwin who survived the hacking.

Erwin narrated that, at around 10:00 to 11:00 p.m., on November 8, 2000, he, his brother David and
Philip went to. birthday party and passed in front of the petitioners’ compound. He was walking twenty
(20) meters ahead of his companions when, suddenly, Philip ran up to him saying that David was being
stabbed by Joey with. bolo. While approaching the scene of the stabbing, which was three (3) meters
away from where his brother David was, Erwin was met by Rodolfo who then hacked him, hitting his arm
and back. Thereafter, Rodolfo and Joey dragged Erwin inside the petitioners’ compound and kept on
hacking him. He was hacked and stabbed thirteen (13) times. He became weak and ultimately fell to the
ground.

Erwin denied that he and David threw stones at the petitioners’ house and damaged Rodolfo’s tricycle.
They did not likewise destroy the petitioners’ gate, which was only damaged when his brother David clung
on to it while he was being pulled by Rodolfo and Erwin into their compound. While they were being
hacked and stabbed by Rodolfo and Erwin, stones actually rained on them and people outside the
petitioners’ gate were saying, “Do not kill the brothers. Allow them to come out.” 16
After the incident, Erwin and David, both unconscious, were brought to the hospital. David died in the
hospital while being treated for his wounds.

The RTC’s Ruling

In a decision dated April 16, 2004, the RTC gave credence to the prosecution’s version of the incident and
found the petitioners guilty beyond reasonable doubt of the crimes of frustrated homicide and homicide. It
disbelieved the defense’s version of the events due to material inconsistencies in the testimonies of the
defense witnesses. It denied the petitioners’ claim of self–defense for lack of clear, convincing and
satisfactory supporting evidence.

The RTC explained in its decision that “[w]hen an accused invokes the justifying circumstance of self–
defense, he loses the constitutional presumption of innocence and assumes the burden of proving, with
clear and convincing evidence, the justification for his act”;17 that self–defense is an affirmative allegation
which must be proven with certainty by sufficient, satisfactory and convincing evidence that excludes any
vestige of criminal aggression on the part of the person invoking it. 18 The RTC held that the petitioners
miserably failed to prove that there was unlawful aggression on the part of the victims, Erwin and David.

Accordingly, the RTC disposed of the case as follows:chanRoblesvirtualLawlibrary

WHEREFORE, finding the accused Rodolfo Guevarra and Joey Guevarra guilty beyond reasonable doubt of
the crimes for which they are charged, and absent any mitigating or aggravating circumstance/s that
attended the commission of the crimes, the Court hereby sentences each of the accused to suffer –

In Criminal Case No. Br. 20–1560 for Frustrated Homicide – an indeterminate penalty ranging from Three
(3) years and one day of prision correccional as minimum to Nine (9) years of prision mayor as maximum
and to indemnify the victim Erwin Ordoñez moral damages in the amount of Twenty Thousand
(P20,000.00) Pesos, without any subsidiary imprisonment in case of insolvency. Cost against the accused.

In Criminal Case No. Br. 20–1561 for Homicide – an indeterminate penalty ranging from Eight (8) years
and one day of prision mayor as minimum to Fifteen (15) years of Reclusion Temporal as maximum and to
indemnify the heirs of the deceased David Ordoñez Sixty Thousand. P60,000.00) Pesos plus Thirty
Thousand. P30,000.00) Pesos as moral damages without subsidiary imprisonment in case of insolvency.
Costs against the accused.

The bail bonds of the accused are CANCELLED.19ChanRoblesVirtualawlibrary

The CA’s Ruling

On appeal, the CA affirmed the RTC’s judgment and convicted the petitioners of the crimes charged. As
the RTC did, the CA found that Erwin and David committed no unlawful aggression sufficient to provoke
the actions of the petitioners; that “[a]ggression, to be unlawful, must be actual and imminent, such that
there is. real threat of bodily harm to the person resorting to self–defense or to others whom that person
is seeking to defend.”20 Even assuming the truth of the petitioners’ claims that David challenged Joey to a
fight and threatened to kill Rodolfo on the night of November 8, 2000, the CA held that these acts do not
constitute unlawful aggression to justify the petitioners’ actions as no real or actual danger existed as the
petitioners were then inside the safety of their own home.

The CA further held that the petitioners’ plea of self–defense was belied by the nature and number of
wounds inflicted on Erwin, who sustained thirteen (13) stab wounds on his arm and back, and David, who
suffered around ten (10) stab wounds on his back and stomach causing his death. These wounds logically
indicated that the assault was no longer an act of self–defense but a determined homicidal aggression on
the part of the petitioners.21

The CA, however, found error in the amounts of civil indemnity and moral damages awarded by the RTC.
Thus, the CA modified the RTC’s decision in this wise:chanRoblesvirtualLawlibrary
WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. In Crim. Case No. Br. 20–
1561, appellants RODOLFO GUEVARRA and JOEY GUEVARRA are each ordered to pay the heirs of the
deceased David Ordonez the sum of Fifty Thousand Pesos (P50,000.00) as civil indemnity and another
Fifty Thousand Pesos (P50,000.00) as moral damages.22ChanRoblesVirtualawlibrary
 The Petition

In the present petition, the petitioners raise the following issues:chanRoblesvirtualLawlibrary

A.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE THE
PRESENCE OF THE JUSTIFYING CIRCUMSTANCE OF SELF–DEFENSE DESPITE CLEAR AND CONVINCING
EVIDENCE SHOWING THE ELEMENTS OF SELF–DEFENSE.

B.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN GIVING FULL CREDENCE TO
THE TESTIMONY OF THE LONE WITNESS OF THE PROSECUTION.

C.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING PETITIONER JOEY
GUEVARRA WHO HAS NO PARTICIPATION IN THE SAID INCIDENT.23ChanRoblesVirtualawlibrary
Our Ruling

We deny the present petition as we find no reversible error in the CA decision of October 24,
2005.

At the outset, we emphasize that the Court’s review of the present case is via petition for review under
Rule 45, which generally bars any question pertaining to the factual issues raised. The well–settled rule is
that questions of fact are not reviewable in petitions for review under Rule 45, subject only to certain
exceptions, among them, the lack of sufficient support in evidence of the trial court’s judgment or the
appellate court’s misapprehension of the adduced facts. 24

The petitioners fail to convince us that we should review the findings of fact in this case. Factual findings
of the RTC, when affirmed by the CA, are entitled to great weight and respect by this Court and are
deemed final and conclusive when supported by the evidence on record. 25 We find that both the RTC and
the CA fully considered the evidence presented by the prosecution and the defense, and they have
adequately explained the legal and evidentiary reasons in concluding that the petitioners are guilty of the
crimes of frustrated homicide and homicide.

In the absence of any showing that the trial and appellate courts overlooked certain facts and
circumstances that could substantially affect the outcome of the present case, we uphold the rulings of the
RTC and the CA which found the elements of these crimes fully established during the trial.

The crime of frustrated homicide is committed when: (1) an “accused intended to kill his victim, as
manifested by his use of deadly weapon in his assault; (2) the victim sustained fatal or mortal wound/s
but did not die because of timely medical assistance; and (3) none of the qualifying circumstance for
murder under Article 248 of the Revised Penal Code is present.” 26

On the other hand, the crime of homicide is committed when: (1) a person is killed; (2) the accused killed
that person without any justifying circumstance; (3) the accused had the intention to kill, which is
presumed; and (4) the killing was not attended by any of the qualifying circumstances of murder, or by
that of parricide or infanticide.27

The petitioners’ intent to kill was clearly established by the nature and number of wounds sustained by
their victims. Evidence to prove intent to kill in crimes against persons may consist, among other things,
of the means used by the malefactors; the conduct of the malefactors before, at the time of, or
immediately after the killing of the victim; and the nature, location and number of wounds sustained by
the victim.28 The CA aptly observed that the ten (10) hack/stab wounds David suffered and which
eventually caused his death, and the thirteen (13) hack/stab wounds Erwin sustained, confirmed the
prosecution’s theory that the petitioners purposely and vigorously attacked David and Erwin. 29 In fact, the
petitioners admitted at the pre–trial that “the wounds inflicted on the victim Erwin Ordoñez would have
caused his death were it not for immediate medical attendance.” 30

By invoking self–defense, the petitioners, in effect, admitted to the commission of the acts for which they
were charged, albeit under circumstances that, if proven, would have exculpated them. With this
admission, the burden of proof shifted to the petitioners to show that the killing and frustrated killing of
David and Erwin, respectively, were attended by the following circumstances: (1) unlawful aggression on
the part of the victims; (2) reasonable necessity of the means employed to prevent or repel such
aggression; and (3) lack of sufficient provocation on the part of the persons resorting to self–defense.31

Of all the burdens the petitioners carried, the most important of all is the element of unlawful aggression.
Unlawful aggression is an actual physical assault, or at least. threat to inflict real imminent injury, upon.
person.32 The element of unlawful aggression must be proven first in order for self–defense to be
successfully pleaded. There can be no self–defense, whether complete or incomplete, unless the victim
had committed unlawful aggression against the person who resorted to self–defense.33

As the RTC and the CA did, we find the absence of the element of unlawful aggression on the part of the
victims. As the prosecution fully established, Erwin and David were just passing by the petitioners’
compound on the night of November 8, 2000 when David was suddenly attacked by Joey while Erwin was
attacked by Rodolfo. The attack actually took place outside, not inside, the petitioners’ compound, as
evidenced by the way the petitioners’ gate was destroyed. The manner by which the wooden gate post
was broken coincided with Erwin’s testimony that his brother David, who was then clinging onto the gate,
was dragged into the petitioners’ compound. These circumstances, coupled with the nature and number of
wounds sustained by the victims, clearly show that the petitioners did not act in self–defense in killing
David and wounding Erwin. The petitioners were, in fact, the real aggressors.

As to the penalties and damages awarded

We affirm the penalties imposed upon the petitioners, as they are well within the ranges provided by law,
but modify the damages awarded by the CA.

In addition to the P50,000.00 civil indemnity and P50,000.00 moral damages awarded by the CA, we
award P25,000.00 to each of the victims as temperate damages, in lieu of the actual damages they
sustained by reason of the crimes. Article 2224 of the Civil Code states that temperate or moderate
damages may be recovered when the court finds that some pecuniary loss has been suffered but its
amount cannot be proved with certainty.

Also, we impose on all the monetary awards for damages interest at the legal rate of six percent (6%) per
annum from date of finality of the decision until fully paid. 34

WHEREFORE, the petition is DENIED. The decision dated October 24, 2005 of the Court of Appeals is
hereby AFFIRMED with MODIFICATION in that the petitioners are also ordered to pay Erwin Ordoñez
and the heirs of David Ordoñez the amount of P25,000.00 as temperate damages.

The petitioners shall pay interest at the rate of six percent (6%) per annum on the civil indemnity, moral
and temperate damages from the finality of this decision until fully paid.

SO ORDERED.
 FIRST DIVISION

G.R. No. 200800, February 09, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. OSCAR SEVILLANO Y RETANAL Accused-

Appellant.

RESOLUTION

PEREZ, J.:

For this Court’s resolution is the appeal filed by Oscar Sevillano y Retanal (appellant) assailing the 17
August 2011 Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 04257 which affirmed the Regional
Trial Court’s (RTC) 4 December 2009 Judgment 2 finding the appellant guilty beyond reasonable doubt of
the crime of murder.chanroblesvirtuallawlibrary

Factual Antecedents

Appellant was charged before the RTC, Branch 17, Manila with murder in an information that
reads:chanRoblesvirtualLawlibrary

That on or about March 11, 2007, in the City of Manila, Philippines, the said accused, with intent to kill
and with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault and use personal violence upon the person of PABLO MADDAUIN y TAMANG by then and
there suddenly and unexpectedly stabbing him several times with a deadly bladed weapon hitting upon
the said Pablo T. Maddauin fatal stab wounds which are the direct cause of his death immediately
thereafter.3cralawlawlibrary

During arraignment, appellant, assisted by his counsel, pleaded not guilty to the crime charged. Trial
thereafter ensued.chanroblesvirtuallawlibrary

Statement of Facts

The version of the prosecution was summarized by the CA thus wise:chanRoblesvirtualLawlibrary

Prosecution witnesses Jose Palavorin and Carmelita Cardona, 67 and 46 years old, respectively, testified
that at around 3:00 p.m. of 11 March 2007, they, together with Victim Pablo Maddauin, were seated on a
long bench having their usual chit-chat at the vacant lot situated at 4th Street Guadal Canal, St., Sta.
Mesa, Manila. Witness Jose was the watchman of this property. While conversing, they saw appellant
coming towards their direction. Appellant could not walk straight and appeared to be drunk. Without
warning, appellant pulled out a knife from his waist and stabbed the victim on the chest. Jose and
Carmelita tried to restrain the appellant from attacking the victim, but Jose experienced leg cramps and
lost his hold on appellant. Appellant turned again on the victim and continued to stab him several times
more. The victim was heard asking appellant, “Bakit?”. Carmelita shouted for help. The victim’s wife came
to the scene and embraced appellant as she wrestled for the knife. Thereafter, [the] victim was brought to
the University of the East Ramon Magsaysay Memorial Medical center; but unfortunately, he died that
same day.4cralawlawlibrary

Appellant, for his part, denied the accusations against him. He interposed self-defense to absolve himself
from criminal liability. He averred that on that fateful afternoon, he went to the vacant lot where the
victim and his friends usually hang-out to feed his chicken. While thereat, the victim, whom he described
to have bloodshot eyes, walk towards him and stepped on his injured foot. While he was on his knees
because of the pain, he saw the victim draw a knife. The latter thereafter stabbed at him while uttering:
“Ikaw pa, putang ina mo,” but missed his target. As he and the victim grappled for the knife, the latter
was accidentally stabbed. When he saw blood oozing out of the victim, he became apprehensive of the
victim’s relative to such extent that he fled the scene and hid to as far as Bulacan where he was
eventually apprehended.chanroblesvirtuallawlibrary
 Ruling of the RTC

In a Judgment5 dated 4 December 2009, the trial court found appellant guilty of murder for the death of
Pablo Maddauin (Pablo) and sentenced him to suffer the penalty of reclusion perpetua without eligibility of
parole and to pay the heirs of the deceased P50,000.00 as civil indemnity; P50,000.00 as moral damages;
and P25,000.00 as exemplary damages.

The trial court gave credence to the testimony of the prosecution witnesses that appellant, who appeared
to be intoxicated, unexpectedly arrived and stabbed Pablo seven times with a knife. The trial court
disregarded appellant’s denial as his testimony was outweighed by the positive statements of the
prosecution witnesses. It likewise ruled that treachery attended the commission of the crime, as
demonstrated by the fact that the victim was seated and engaged in a conversation when suddenly
attacked by the appellant. The trial court ruled that such situation foreclosed any opportunity on the part
of the victim to ward off the impending harm.chanroblesvirtuallawlibrary

The Ruling of the Court of Appeals

In his appeal before the CA, appellant contended that:chanRoblesvirtualLawlibrary

I.

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE ACCUSED-APPELLANT’S GUILT FOR THE CRIME
CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.chanroblesvirtuallawlibrary

II

ON THE ASSUMPTION THAT THE ACCUSED-APPELLANT IS LIABLE, THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT OF MURDER INSTEAD OF HOMICIDE.chanroblesvirtuallawlibrary

III

THE TRIAL COURT ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT ACTED IN SELF-
DEFENSE.6cralawlawlibrary

The CA found no reason to disturb the findings of the RTC and upheld its ruling but with modification on
the amount of damages awarded. The CA ordered appellant to indemnify the heirs of Pablo in the
amounts of P75,000.00 as civil indemnity; P75,000.00 as moral damages; and P30,000.00 as exemplary
damages. The appellate court held that the eyewitness accounts of prosecution witnesses Jose Palavorin
and Carmelita Cardona, and their positive identification of appellant as the perpetrator, aptly
complemented by the findings of the post-mortem examination, are more plausible than the appellant’s
claim of self-defense.7 The CA likewise sustained the trial court’s findings that the qualifying circumstance
of treachery was present in the case. It held that although the attack on the victim was frontal, it was
deliberate, sudden and unexpected, affording the hapless, unarmed and unsuspecting victim no
opportunity to resist or to defend himself.8cralawred

Issues

Undaunted, appellant is now before this Court continuing to insist that his guilt was not proven beyond
reasonable doubt, and that the lower courts erred in rejecting his claim of self-defense and convicting him
of murder instead of homicide.chanroblesvirtuallawlibrary

Our Ruling

We find the appeal bereft of merit.

Well entrenched in our jurisprudence is the rule that findings of the trial court on the credibility of
witnesses deserve great weight, as the trial judge is in the best position to assess the credibility of the
witnesses, and has the unique opportunity to observe the witness first hand and note his demeanor,
conduct and attitude under gruelling examination. 9 Absent any showing that the trial court’s calibration of
credibility was flawed, the appellate court is bound by its assessment.

In the prosecution of the crime of murder as defined in Article 248 of the Revised Penal Code (RPC), the
following elements must be established by the prosecution: (1) that a person was killed; (2) that the
accused killed that person; (3) that the killing was attended by treachery; and (4) that the killing is not
infanticide or parricide.10cralawred

After a careful evaluation of the records, we find that these elements were clearly met. The prosecution
witnesses positively identified the appellant as the person who stabbed Pablo several times on the chest
which eventually caused the latter’s death. They testified that they even tried to stop appellant’s attack
but unfortunately, were unsuccessful. We find no reason to disbelieve the testimonies of these witnesses
considering that their narration of facts were straightforward and replete with details that coincide with
the medical examination conducted on the body of the victim. We are not persuaded by the appellant’s
defense of denial as this cannot prevail over the eyewitnesses’ positive identification of him as the
perpetrator of the crime. Denial, like alibi, if not substantiated by clear and convincing evidence, is
negative and self-serving evidence undeserving of weight in law.11cralawred

Anent the presence of the element of treachery as a qualifying circumstance, the prosecution was able to
establish that the attack on the unsuspecting victim, who was merely seated on a bench and talking with
his friends, was very sudden. In fact, the victim was able to utter only “Bakit?”. We note that the
essence of treachery is the sudden and unexpected attack on the unsuspecting victim by the perpetrator
of the crime, depriving the former of any chance to defend himself or to repel the aggression, thus
insuring its commission without risk to the aggressor and without any provocation on the part of the
victim.

By invoking self-defense, appellant in effect, admits to having inflicted the stab wounds which killed the
victim. The burden was, therefore, shifted on him to prove that the killing was done in self-defense. In
Razon v. People,12 this Court held that where an accused admits the killing, he assumes the burden to
establish his plea by credible, clear and convincing evidence; otherwise, conviction would follow from his
admission that he killed the victim. Self-defense cannot be justifiably appreciated when corroborated by
independent and competent evidence or when it is extremely doubtful by itself.

Under Article 11, paragraph 1 of the RPC, the following elements must be present in order that a plea of
self-defense may be validly considered in absolving a person from criminal
liability:chanRoblesvirtualLawlibrary

First. Unlawful Aggression;ChanRoblesVirtualawlibrary

Second. Reasonable necessity of the means employed to prevent or repel it;ChanRoblesVirtualawlibrary

Third. Lack of sufficient provocation on the part of the person defending himself.cralawlawlibrary

Appellant’s version that it was the victim who was armed with a knife and threatened to stab him was
found by the lower court to be untenable. We agree with the lower court’s conclusion. Assuming
arguendo that there was indeed unlawful aggression on the part of the victim, the imminence of that
danger had already ceased the moment appellant was able to wrestle the knife from him. Thus, there was
no longer any unlawful aggression to speak of that would justify the need for him to kill the victim or the
former aggressor. This Court has ruled that if an accused still persists in attacking his adversary, he can
no longer invoke the justifying circumstance of self-defense.13 The fact that the victim suffered many stab
wounds in the body that caused his demise, and the nature and location of the wound also belies and
negates the claim of self-defense. It demonstrates a criminal mind resolved to end the life of the
victim.14cralawred

As to the penalties and damages

We affirm the penalty imposed upon appellant. Under Article 248 of the RPC, as amended, the crime of
murder qualified by treachery is penalized with reclusion perpetua to death. The lower courts were correct
in sentencing appellant to suffer the penalty of reclusion perpetua, upon consideration of the absence of
any aggravating and mitigating circumstances that attended the commission of the offense.

We likewise affirm the CA’s award of P75,000.00 as civil indemnity; P75,000.00 as moral damages; and
P30,000.00 as exemplary damages to the victim’s heirs, as these amounts are consistent with current
jurisprudence.15 In addition, we impose on all the monetary awards for damages interest at the legal rate
of six percent (6%) per annum from date of finality of the resolution until fully paid. 16cralawred

WHEREFORE, the petition is DENIED. The Decision dated 17 August 2011 of the Court of Appeals in CA-
G.R. CR No. 04257 finding Oscar Sevillano y Retanal guilty beyond reasonable doubt of murder,
sentencing him to suffer the penalty of reclusion perpetua without eligibility of parole, and ordering him to
indemnify the heirs of Pablo Maddauin in the amounts of P75,000.00 as civil indemnity; P75,000.00 as
moral damages; and P30,000.00 as exemplary damages is hereby AFFIRMED with MODIFICATION that
he shall pay interest at the rate of six percent (6%) per annum on the civil indemnity, moral and
exemplary damages awarded from finality of this resolution until fully paid.

SO ORDERED.cralawlawlibrary
 EN BANC

G.R. No. 135981 January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the
"battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven facts,
however, she is not entitled to complete exoneration because there was no unlawful aggression -- no
immediate and unexpected attack on her by her batterer-husband at the time she shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative
provocation that broke down her psychological resistance and self-control. This "psychological paralysis"
she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9
and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she
suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months
pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state,
which overcame her reason and impelled her to vindicate her life and her unborn child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits
of the Indeterminate Sentence Law, she may now apply for and be released from custody on parole,
because she has already served the minimum period of her penalty while under detention during the
pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision1 of the Regional Trial Court
(RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond
reasonable doubt of parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic
Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under
Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding
treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby
sentences the accused with the penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty
thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand
pesos (P50,000.00), Philippine currency as moral damages."2

The Information3 charged appellant with parricide as follows:

 "That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel,
Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate
husband, with the use of a hard deadly weapon, which the accused had provided herself for the
purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its
sockets and tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in]
laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of
the brain, laceration of the dura and meningeal vessels producing severe intracranial
hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the
epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death."4

With the assistance of her counsel,5 appellant pleaded not guilty during her arraignment on March 3,
1997.6 In due course, she was tried for and convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this wise:

"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City.
Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben's
younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and
Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with
their two children, namely: John Marben and Earl Pierre.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary.
They each had two (2) bottles of beer before heading home. Arturo would pass Ben's house before
reaching his. When they arrived at the house of Ben, he found out that appellant had gone to
Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it,
waiting until 9:00 in the evening for the masiao runner to place a bet. Arturo did not see appellant
arrive but on his way home passing the side of the Genosas' rented house, he heard her say 'I
won't hesitate to kill you' to which Ben replied 'Why kill me when I am innocent?' That was the last
time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas' rented house appeared
uninhabited and was always closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living
about fifty (50) meters from her house, to look after her pig because she was going to Cebu for a
pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor
Ronnie Dayandayan who unfortunately had no money to buy it.
"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc
when he saw appellant going out of their house with her two kids in tow, each one carrying a bag,
locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty
(50) meters behind the Genosas' rented house. Joseph, appellant and her children rode the same
bus to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to
him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating
from his house being rented by Ben and appellant. Steban went there to find out the cause of the
stench but the house was locked from the inside. Since he did not have a duplicate key with him,
Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through
the kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban
went inside the unlocked bedroom where the offensive smell was coming from. There, he saw the
lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs
with injuries at the back of his head. Seeing this, Steban went out of the house and sent word to
the mother of Ben about his son's misfortune. Later that day, Iluminada Genosa, the mother of
Ben, identified the dead body as that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police
station at Isabel, Leyte, received a report regarding the foul smell at the Genosas' rented house.
Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the
house and went inside the bedroom where they found the dead body of Ben lying on his side
wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3
Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from
where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches
long with a diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a
red stain at one end. The bedroom was not in disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken
outside at the back of the house before the postmortem examination was conducted by Dr. Cerillo
in the presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-
legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was
already decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the
Information for parricide later filed against appellant. She concluded that the cause of Ben's death
was 'cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed
fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15,
1995, she got worried that her husband who was not home yet might have gone gambling since it
was a payday. With her cousin Ecel Araño, appellant went to look for Ben at the marketplace and
taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the
Genosas' house. Ecel went home despite appellant's request for her to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She
allegedly ignored him and instead attended to their children who were doing their homework.
Apparently disappointed with her reaction, Ben switched off the light and, with the use of a
chopping knife, cut the television antenna or wire to keep her from watching television. According
to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of her hands
and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this
point, appellant packed his clothes because she wanted him to leave. Seeing his packed clothes
upon his return home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom
towards a drawer holding her by the neck, and told her 'You might as well be killed so nobody
would nag me.' Appellant testified that she was aware that there was a gun inside the drawer but
since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She
however, 'smashed' the arm of Ben with a pipe, causing him to drop the blade and his wallet.
Appellant then 'smashed' Ben at his nape with the pipe as he was about to pick up the blade and
his wallet. She thereafter ran inside the bedroom.
 "Appellant, however, insisted that she ended the life of her husband by shooting him. She
supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the spot,
though, but in the bedroom."7 (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage,
Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in
Business Administration, and was working, at the time of her husband's death, as a Secretary to
the Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and
Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in
Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were
against their relationship, but Ben was persistent and tried to stop other suitors from courting her.
Their closeness developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's brother,
Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'. But apparently,
soon thereafter, the couple would quarrel often and their fights would become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben and
Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come
home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw
Marivic holding a kitchen knife after Ben had shouted for help as his left hand was covered with
blood. Marivic left the house but after a week, she returned apparently having asked for Ben's
forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently
rushed to Ben's aid again and saw blood from Ben's forehead and Marivic holding an empty bottle.
Ben and Marivic reconciled after Marivic had apparently again asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic married
in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage went along,
Marivic became 'already very demanding. Mrs. Iluminada Genosa said that after the birth of
Marivic's two sons, there were 'three (3) misunderstandings.' The first was when Marivic stabbed
Ben with a table knife through his left arm; the second incident was on November 15, 1994, when
Marivic struck Ben on the forehead 'using a sharp instrument until the eye was also affected. It was
wounded and also the ear' and her husband went to Ben to help; and the third incident was in
1995 when the couple had already transferred to the house in Bilwang and she saw that Ben's
hand was plastered as 'the bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we collected
our salary, we went to the cock-fighting place of ISCO.' They stayed there for three (3) hours, after
which they went to 'Uniloks' and drank beer – allegedly only two (2) bottles each. After drinking
they bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while
talking with Ben, after which he went across the road to wait 'for the runner and the usher of the
masiao game because during that time, the hearing on masiao numbers was rampant. I was
waiting for the ushers and runners so that I can place my bet.' On his way home at about 9:00 in
the evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was
one 'Fredo' who is used by Ben to feed his fighting cocks. Basobas' testimony on the root of the
quarrel, conveniently overheard by him was Marivic saying 'I will never hesitate to kill you', whilst
Ben replied 'Why kill me when I am innocent.' Basobas thought they were joking.
"He did not hear them quarreling while he was across the road from the Genosa residence.
Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday. He
claims that he once told Ben 'before when he was stricken with a bottle by Marivic Genosa' that he
should leave her and that Ben would always take her back after she would leave him 'so many
times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been
quarreling. He said Ben 'even had a wound' on the right forehead. He had known the couple for
only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a
habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her down
on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but Ben
would follow her and seek her out, promising to change and would ask for her forgiveness. She
said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and
Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports.
Marivic said Ben would beat her or quarrel with her every time he was drunk, at least three times a
week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse
and violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for
help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben had
Marivic in a choke hold. He did not do anything, but had come voluntarily to testify. (Please note
this was the same night as that testified to by Arturo Busabos.8 )

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that
he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the
window of his hut which is located beside the Genosa house and saw 'the spouses grappling with
each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic
Genosa'. He said after a while, Marivic was able to extricate he[r]self and enter the room of the
children. After that, he went back to work as he was to go fishing that evening. He returned at
8:00 the next morning. (Again, please note that this was the same night as that testified to by
Arturo Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel,
Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew
them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic
confided in him that Ben would pawn items and then would use the money to gamble. One time,
he went to their house and they were quarreling. Ben was so angry, but would be pacified 'if
somebody would come.' He testified that while Ben was alive 'he used to gamble and when he
became drunk, he would go to our house and he will say, 'Teody' because that was what he used
to call me, 'mokimas ta,' which means 'let's go and look for a whore.' Mr. Sarabia further testified
that Ben 'would box his wife and I would see bruises and one time she ran to me, I noticed a
wound (the witness pointed to his right breast) as according to her a knife was stricken to her.' Mr.
Sarabia also said that once he saw Ben had been injured too. He said he voluntarily testified only
that morning.

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the
afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben.
They searched in the market place, several taverns and some other places, but could not find him.
She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house 'because
she might be battered by her husband.' When they got to the Genosa house at about 7:00 in the
evening, Miss Arano said that 'her husband was already there and was drunk.' Miss Arano knew he
was drunk 'because of his staggering walking and I can also detect his face.' Marivic entered the
house and she heard them quarrel noisily. (Again, please note that this is the same night as that
testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic had
asked her to sleep in the house as Marivic would be afraid every time her husband would come
home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening
when Ben arrived because the couple 'were very noisy in the sala and I had heard something was
broken like a vase.' She said Marivic ran into her room and they locked the door. When Ben
couldn't get in he got a chair and a knife and 'showed us the knife through the window grill and he
scared us.' She said that Marivic shouted for help, but no one came. On cross-examination, she
said that when she left Marivic's house on November 15, 1995, the couple were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS,
Isabel, Leyte. Marivic was his patient 'many times' and had also received treatment from other
doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6)
episodes of physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient
Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and
considered him an expert witness.'

xxx xxx xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-three
(23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of Marivic at the
Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of
physical injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the
injuries were directly related to the crime committed. He said it is only a psychiatrist who is
qualified to examine the psychological make-up of the patient, 'whether she is capable of
committing a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that
about two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She
sought his help to settle or confront the Genosa couple who were experiencing 'family troubles'. He
told Marivic to return in the morning, but he did not hear from her again and assumed 'that they
might have settled with each other or they might have forgiven with each other.'

xxx xxx xxx

"Marivic said she did not provoke her husband when she got home that night it was her husband
who began the provocation. Marivic said she was frightened that her husband would hurt her and
she wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted
later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the
baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5)
times, but that Ben would always follow her and they would reconcile. Marivic said that the reason
why Ben was violent and abusive towards her that night was because 'he was crazy about his
recent girlfriend, Lulu x x x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the
bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in
his testimony; that she left for Manila the next day, November 16, 1995; that she did not bother
anyone in Manila, rented herself a room, and got herself a job as a field researcher under the alias
'Marvelous Isidro'; she did not tell anyone that she was leaving Leyte, she just wanted to have a
safe delivery of her baby; and that she was arrested in San Pablo, Laguna.
'Answering questions from the Court, Marivic said that she threw the gun away; that she did not
know what happened to the pipe she used to 'smash him once'; that she was wounded by Ben on
her wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he kicked her 'ass'
and dragged her towards the drawer when he saw that she had packed his things.'

"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of
the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution
witnesses and some defense witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the
time of the incident, and among her responsibilities as such was to take charge of all medico-legal
cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a
forensic pathologist. She merely took the medical board exams and passed in 1986. She was called
by the police to go to the Genosa residence and when she got there, she saw 'some police officer
and neighbor around.' She saw Ben Genosa, covered by a blanket, lying in a semi-prone position
with his back to the door. He was wearing only a brief.

xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area of
the head' which she described as a 'fracture'. And that based on her examination, Ben had been
dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the
crime of PARRICIDE committed 'with intent to kill, with treachery and evidence premeditation, x x
x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband,
with the use of a hard deadly weapon x x x which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September
1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon.
Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding
Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and further found treachery as
an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH.

"14. The case was elevated to this Honorable Court upon automatic review and, under date of 24
January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as
counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellant's Briefs he had
prepared for Marivic which, for reasons of her own, were not conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to
the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of
Chief Judicial Records Office, wherein she submitted her 'Brief without counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable
Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that
the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of
his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to
determine her state of mind at the time she killed her husband; and finally, to allow a partial re-
opening of the case a quo to take the testimony of said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only
qualified forensic pathologist in the country, who opined that the description of the death wound
(as culled from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound than a
beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic's
URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the reception of expert
psychological and/or psychiatric opinion on the 'battered woman syndrome' plea, within ninety (90)
days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together
with the copies of the TSN and relevant documentary evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito
L. Madrona, RTC-Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic
Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999,
but that the clinical interviews and psychological assessment were done at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own
private clinic and connected presently to the De La Salle University as a professor. Before this, she
was the Head of the Psychology Department of the Assumption College; a member of the faculty of
Psychology at the Ateneo de Manila University and St. Joseph's College; and was the counseling
psychologist of the National Defense College. She has an AB in Psychology from the University of
the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD
from the U.P. She was the past president of the Psychological Association of the Philippines and is a
member of the American Psychological Association. She is the secretary of the International
Council of Psychologists from about 68 countries; a member of the Forensic Psychology
Association; and a member of the ASEAN [Counseling] Association. She is actively involved with
the Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological
profile of families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book entitled 'Energy
Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first
time she has testified as an expert on battered women as this is the first case of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and
psychological profile of families involved in domestic violence, and nullity cases, she looked at
about 500 cases over a period of ten (10) years and discovered that 'there are lots of variables that
cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological abuse,
verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx xxx xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion of
herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually think very
lowly of themselves and so when the violence would happen, they usually think that they provoke
it, that they were the one who precipitated the violence, they provoke their spouse to be
physically, verbally and even sexually abusive to them.' Dra. Dayan said that usually a battered x x
x comes from a dysfunctional family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion of
himself. But then emerges to have superiority complex and it comes out as being very arrogant,
very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for
frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they
become violent.' The batterer also usually comes from a dysfunctional family which over-pampers
them and makes them feel entitled to do anything. Also, they see often how their parents abused
each other so 'there is a lot of modeling of aggression in the family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her
husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes
her hope her husband will change, the belief in her obligations to keep the family intact at all costs
for the sake of the children.

xxx xxx xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock
themselves in another room, or sometimes try to fight back triggering 'physical violence on both of
them.' She said that in a 'normal marital relationship,' abuses also happen, but these are 'not
consistent, not chronic, are not happening day in [and] day out.' In an 'abnormal marital
relationship,' the abuse occurs day in and day out, is long lasting and 'even would cause
hospitalization on the victim and even death on the victim.'

xxx xxx xxx

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her
opinion that Marivic fits the profile of a battered woman because 'inspite of her feeling of self-
confidence which we can see at times there are really feeling (sic) of loss, such feelings of
humiliation which she sees herself as damaged and as a broken person. And at the same time she
still has the imprint of all the abuses that she had experienced in the past.'

xxx xxx xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for
nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then
thought of herself as a victim.

xxx xxx xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared
and testified before RTC-Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board
of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of
psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with the
Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After
that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna
Medical Center for twenty six (26) years. Prior to his retirement from government service, he
obtained the rank of Brigadier General. He obtained his medical degree from the University of
Santo Tomas. He was also a member of the World Association of Military Surgeons; the Quezon
City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military
Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy
from the Period 1954 – 1978' which was presented twice in international congresses. He also
authored 'The Mental Health of the Armed Forces of the Philippines 2000', which was likewise
published internationally and locally. He had a medical textbook published on the use of Prasepam
on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he
published the use of the drug Zopiclom in 1985-86.
"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology
deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a
bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already
encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed
Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty
thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of
his experience with domestic violence cases, he became a consultant of the Battered Woman Office
in Quezon City under Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence, where there
is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to
an unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic
Stress Disorder 'depends on the vulnerability of the victim.' Dr. Pajarillo said that if the victim is
not very healthy, perhaps one episode of violence may induce the disorder; if the psychological
stamina and physiologic constitutional stamina of the victim is stronger, 'it will take more repetitive
trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or
neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx xxx xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as if it
were real, although she is not actually being beaten at that time. She thinks 'of nothing but the
suffering.'

xxx xxx xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable,
and she is irritable and restless. She tends to become hard-headed and persistent. She has higher
sensitivity and her 'self-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such as the
deprivation of the continuous care and love of the parents. As to the batterer, he normally
'internalizes what is around him within the environment.' And it becomes his own personality. He is
very competitive; he is aiming high all the time; he is so macho; he shows his strong façade 'but in
it there are doubts in himself and prone to act without thinking.'

xxx xxx xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the one
who administered the battering, that re-experiencing of the trauma occurred (sic) because the
individual cannot control it. It will just come up in her mind or in his mind.'

xxx xxx xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves,
and 'primarily with knives. Usually pointed weapons or any weapon that is available in the
immediate surrounding or in a hospital x x x because that abound in the household.' He said a
victim resorts to weapons when she has 'reached the lowest rock bottom of her life and there is no
other recourse left on her but to act decisively.'

xxx xxx xxx

 "Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two
(2) hours and seventeen (17) minutes. He used the psychological evaluation and social case
studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January
2001.

xxx xxx xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her
husband Marivic'c mental condition was that she was 're-experiencing the trauma.' He said 'that we
are trying to explain scientifically that the re-experiencing of the trauma is not controlled by
Marivic. It will just come in flashes and probably at that point in time that things happened when
the re-experiencing of the trauma flashed in her mind.' At the time he interviewed Marivic 'she was
more subdued, she was not super alert anymore x x x she is mentally stress (sic) because of the
predicament she is involved.'

xxx xxx xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public
prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the partially
re-opened trial a quo were elevated."9

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence
that appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated
the generic aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless
when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of his head.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had
killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for purposes
of the automatic review or, in the alternative, a partial reopening of the case for the lower court to admit
the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion, remanding the
case to the trial court for the reception of expert psychological and/or psychiatric opinion on the "battered
woman syndrome" plea; and requiring the lower court to report thereafter to this Court the proceedings
taken as well as to submit copies of the TSN and additional evidence, if any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on domestic violence.
Their testimonies, along with their documentary evidence, were then presented to and admitted by the
lower court before finally being submitted to this Court to form part of the records of the case.12

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on
the evidence adduced as to self-defense.
 "2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and
unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and
further gravely erred in concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her subsequent
apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child.

"7. The trial court gravely erred in concluding that there was an aggravating circumstance of
treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining
the existence of self-defense and defense of foetus in this case, thereby erroneously convicting
Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death."13

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in
defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of
the principal issues. As consistently held by this Court, the findings of the trial court on the credibility of
witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on
appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked,
misunderstood or misapplied material facts or circumstances of weight and substance that could affect the
outcome of the case.14

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the case. In
any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without reflecting on
the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge Fortunito L.
Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on the
basis of those and of the documentary evidence on record -- made his evaluation, findings and
conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the
accused. While she, or even this Court, may not agree with the trial judge's conclusions, we cannot
peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge about two months from the conclusion
of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch
should not be taken against him, much less used to condemn him for being unduly hasty. If at all, the
dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial
compliance with his constitutional obligation.15
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally
married, despite the non-presentation of their marriage contract. In People v. Malabago,16 this Court
held:

"The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the deceased is
the marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact
of marriage may be considered by the trial court if such proof is not objected to."

Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased spouse --
attested in court that Ben had been married to Marivic.17 The defense raised no objection to these
testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her
marriage to Ben.18 Axiomatic is the rule that a judicial admission is conclusive upon the party making it,
except only when there is a showing that (1) the admission was made through a palpable mistake, or (2)
no admission was in fact made.19 Other than merely attacking the non-presentation of the marriage
contract, the defense offered no proof that the admission made by appellant in court as to the fact of her
marriage to the deceased was made through a palpable mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by a
gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September
29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her husband and the
acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes
that exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the
victim's death." Determining which of these admitted acts caused the death is not dispositive of the guilt
or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler,
womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the
novel defense of "battered woman syndrome," for which such evidence may have been relevant. Her
theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the
legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the
surrounding facts that led to the death of the victim. Hence, his personal character, especially his past
behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As
correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and
control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence
are necessary to present.20 As the former further points out, neither the trial court nor the prosecution
prevented appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court
for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her
subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her
unborn child. Any reversible error as to the trial court's appreciation of these circumstances has little
bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of
her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any
claimed justifying circumstance by clear and convincing evidence.21 Well-settled is the rule that in
criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of
proof from the prosecution to the defense.22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in
Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense
or, at the least, incomplete self-defense.23 By appreciating evidence that a victim or defendant is afflicted
with the syndrome, foreign courts convey their "understanding of the justifiably fearful state of mind of a
person who has been cyclically abused and controlled over a period of time."24

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful physical or
psychological behavior by a man in order to coerce her to do something he wants her to do without
concern for her rights. Battered women include wives or women in any form of intimate relationship with
men. Furthermore, in order to be classified as a battered woman, the couple must go through the
battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If
it occurs a second time, and she remains in the situation, she is defined as a battered woman."25

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the
home, the family and the female sex role; emotional dependence upon the dominant male; the tendency
to accept responsibility for the batterer's actions; and false hopes that the relationship will improve.26

More graphically, the battered woman syndrome is characterized by the so-called "cycle of violence,"27
which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the
tranquil, loving (or, at least, nonviolent) phase.28

During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse
or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of
kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows
herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the
escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged,
because her "placatory" and passive behavior legitimizes his belief that he has the right to abuse her in
the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually successful,
and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the
growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws
emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry,
oppressive and abusive. Often, at some unpredictable point, the violence "spirals out of control" and leads
to an acute battering incident.29

The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes,
death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase,
she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable
as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that
she cannot reason with him, and that resistance would only exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later
clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized
thus: the batterer is almost always much stronger physically, and she knows from her past painful
experience that it is futile to fight back. Acute battering incidents are often very savage and out of control,
such that innocent bystanders or intervenors are likely to get hurt.30

The final phase of the cycle of violence begins when the acute battering incident ends. During this
tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender
and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make
up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the
battered woman also tries to convince herself that the battery will never happen again; that her partner
will change for the better; and that this "good, gentle and caring man" is the real person whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer.
Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the
chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains
with him. Generally, only after she leaves him does he seek professional help as a way of getting her
back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented
psychologically.

The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this phase,
she and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he
for her forgiveness. Underneath this miserable cycle of "tension, violence and forgiveness," each partner
may believe that it is better to die than to be separated. Neither one may really feel independent, capable
of functioning without the other.31

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She
herself described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a
behavior of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you and
cruel. In what way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me down on

the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and
he said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive behavior by your
husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
 xxx xxx xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx xxx xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred,
after your marriage, from that time on, how frequent was the occurrence?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel me." 32

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing
bolstered her foregoing testimony on chronic battery in this manner:

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your
clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of
eye. Attending physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R)
breast. Attending physician: Dr. Canora;
 3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending
physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending physician, is
that correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you
mean by abrasion furuncle left axilla?

A Abrasion is a skin wound usually when it comes in contact with something rough substance if
force is applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx xxx xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me
that it was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx xxx xxx

ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused sometime in the month of
November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her pregnancy or
for some other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx xxx xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her
personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I have
a record here, also the same period from 1989 to 1995, she had a consultation for twenty-three
(23) times.

Q For what?
 A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not
response when the medication was given to her, because tension headache is more or less stress
related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history in
line of giving the root cause of what is causing this disease. So, from the moment you ask to the
patient all comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is
unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood
pressure?

A It was dangerous to the child or to the fetus." 34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified
that he had seen the couple quarreling several times; and that on some occasions Marivic would run to
him with bruises, confiding that the injuries were inflicted upon her by Ben.35

Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at the
Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one occasion
that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple "were very
noisy … and I heard something was broken like a vase." Then Marivic came running into Ecel's room and
locked the door. Ben showed up by the window grill atop a chair, scaring them with a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they
were unable to. They returned to the Genosa home, where they found him already drunk. Again afraid
that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel
hesitated; and when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or
heard the couple quarreling.37 Marivic relates in detail the following backdrop of the fateful night when life
was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I
boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my
son, where was his father, then my second child said, 'he was not home yet'. I was worried
because that was payday, I was anticipating that he was gambling. So while waiting for him, my
eldest son arrived from school, I prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time
because I had fears that he was again drunk and I was worried that he would again beat me so I
requested my cousin to sleep with me, but she resisted because she had fears that the same thing
will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.
Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried he
might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear
that he will beat me again. Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, 'why did you switch off the light when the
children were there.' At that time I was also attending to my children who were doing their
assignments. He was angry with me for not answering his challenge, so he went to the kitchen and
[got] a bolo and cut the antenna wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he was
already holding the bolo.
Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his clothes,
then he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front
neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that
'you might as well be killed so there will be nobody to nag me.'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open
it because he did not have the key then he pulled his wallet which contained a blade about 3 inches
long and I was aware that he was going to kill me and I smashed his arm and then the wallet and
the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when
he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and
on that very moment everything on my mind was to pity on myself, then the feeling I had on that
very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx xxx xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.
 Q You said that he dropped the blade, for the record will you please describe this blade about 3
inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me." 38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling
about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to the court a
quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term
describe to this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering
emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse
and to physical abuse. The husband had a very meager income, she was the one who was
practically the bread earner of the family. The husband was involved in a lot of vices, going out
with barkadas, drinking, even womanizing being involved in cockfight and going home very angry
and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from
the husband for the reason that the husband even accused her of infidelity, the husband was
saying that the child she was carrying was not his own. So she was very angry, she was at the
same time very depressed because she was also aware, almost like living in purgatory or even hell
when it was happening day in and day out." 39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put
forward, additional supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her about
three hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important information
were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of
the case or at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as
substantial.

xxx xxx xxx

 Q Did you gather an information from Marivic that on the side of her husband they were fond of
battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?

A What I remember that there were brothers of her husband who are also battering their wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her
husband followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is
the first time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-
defense. I also believe that there had been provocation and I also believe that she became a
disordered person. She had to suffer anxiety reaction because of all the battering that happened
and so she became an abnormal person who had lost she's not during the time and that is why it
happened because of all the physical battering, emotional battering, all the psychological abuses
that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes.40

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test, what x x x [is this] all
about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test
is to find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?
 A She was a person who passed the honesty test. Meaning she is a person that I can trust. That
the data that I'm gathering from her are the truth."41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report,42 which was based on his interview and examination of Marivic Genosa. The Report said that
during the first three years of her marriage to Ben, everything looked good -- the atmosphere was fine,
normal and happy -- until "Ben started to be attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in drinking
sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his
wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he became
physically abusive. Marivic claimed that the viciousness of her husband was progressive every time he got
drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband went for
a drinking [spree]. They had been married for twelve years[;] and practically more than eight years, she
was battered and maltreated relentlessly and mercilessly by her husband whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of her
feeling ashamed of what was happening to her. But incessant battering became more and more frequent
and more severe. x x x."43

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary,
reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court
has aptly pointed out that expert evidence on the psychological effect of battering on wives and common
law partners are both relevant and necessary. "How can the mental state of the appellant be appreciated
without it? The average member of the public may ask: Why would a woman put up with this kind of
treatment? Why should she continue to live with such a man? How could she love a partner who beat her
to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is
her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the
average person confronted with the so-called 'battered wife syndrome.'"44

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated,
severe beatings may not be consistent with -- nay, comprehensible to -- those who have not been through
a similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions
about battered women.45

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a
significant impact in the United States and the United Kingdom on the treatment and prosecution of cases,
in which a battered woman is charged with the killing of her violent partner. The psychologist explains that
the cyclical nature of the violence inflicted upon the battered woman immobilizes the latter's "ability to act
decisively in her own interests, making her feel trapped in the relationship with no means of escape."46 In
her years of research, Dr. Walker found that "the abuse often escalates at the point of separation and
battered women are in greater danger of dying then."47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very low
opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the
violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually
abusive to them."48
According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children, and
that she is the only hope for her spouse to change.49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits
involving violent family relations, having evaluated "probably ten to twenty thousand" violent family
disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his
experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon
City. As such, he got involved in about forty (40) cases of severe domestic violence, in which the physical
abuse on the woman would sometimes even lead to her loss of consciousness.50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress disorder,
a form of "anxiety neurosis or neurologic anxietism."51 After being repeatedly and severely abused,
battered persons "may believe that they are essentially helpless, lacking power to change their situation. x
x x [A]cute battering incidents can have the effect of stimulating the development of coping responses to
the trauma at the expense of the victim's ability to muster an active response to try to escape further
trauma. Furthermore, x x x the victim ceases to believe that anything she can do will have a predictable
positive effect."52

A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that
"even if a person has control over a situation, but believes that she does not, she will be more likely to
respond to that situation with coping responses rather than trying to escape." He said that it was the
cognitive aspect -- the individual's thoughts -- that proved all-important. He referred to this phenomenon
as "learned helplessness." "[T]he truth or facts of a situation turn out to be less important than the
individual's set of beliefs or perceptions concerning the situation. Battered women don't attempt to leave
the battering situation, even when it may seem to outsiders that escape is possible, because they cannot
predict their own safety; they believe that nothing they or anyone else does will alter their terrible
circumstances."54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her
partner, she also believes that he is capable of killing her, and that there is no escape.55 Battered women
feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.56 Unless a shelter is
available, she stays with her husband, not only because she typically lacks a means of self-support, but
also because she fears that if she leaves she would be found and hurt even more.57

In the instant case, we meticulously scoured the records for specific evidence establishing that appellant,
due to the repeated abuse she had suffered from her spouse over a long period of time, became afflicted
with the battered woman syndrome. We, however, failed to find sufficient evidence that would support
such a conclusion. More specifically, we failed to find ample evidence that would confirm the presence of
the essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing the
relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the
court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the
tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics
of this stage. However, that single incident does not prove the existence of the syndrome. In other words,
she failed to prove that in at least another battering episode in the past, she had gone through a similar
pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did
Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to prevent
the situation from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her mother's or father's house;58 that Ben would seek her
out, ask for her forgiveness and promise to change; and that believing his words, she would return to
their common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe
that she was the only hope for Ben to reform? And that she was the sole support of his emotional stability
and well-being? Conversely, how dependent was she on him? Did she feel helpless and trapped in their
relationship? Did both of them regard death as preferable to separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would
clearly and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were
able to explain fully, albeit merely theoretically and scientifically, how the personality of the battered
woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by
her partner or spouse. They corroborated each other's testimonies, which were culled from their numerous
studies of hundreds of actual cases. However, they failed to present in court the factual experiences and
thoughts that appellant had related to them -- if at all -- based on which they concluded that she had
BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in
order to be appreciated. To repeat, the records lack supporting evidence that would establish all the
essentials of the battered woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of
the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense.59

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is
the state of mind of the battered woman at the time of the offense60 -- she must have actually feared
imminent harm from her batterer and honestly believed in the need to kill him in order to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real
threat on one's life; and the peril sought to be avoided must be imminent and actual, not merely
imaginary.61 Thus, the Revised Penal Code provides the following requisites and effect of self-defense:62

"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

"1. Anyone who acts in defense of his person or rights, provided that the following circumstances
concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself."

Unlawful aggression is the most essential element of self-defense.63 It presupposes actual, sudden and
unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.64 In the present
case, however, according to the testimony of Marivic herself, there was a sufficient time interval between
the unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw
from his violent behavior and escape to their children's bedroom. During that time, he apparently ceased
his attack and went to bed. The reality or even the imminence of the danger he posed had ended
altogether. He was no longer in a position that presented an actual threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on past
violent incidents, there was a great probability that he would still have pursued her and inflicted graver
harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where the
brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of
the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the
battered person to await an obvious, deadly attack before she can defend her life "would amount to
sentencing her to 'murder by installment.'"65 Still, impending danger (based on the conduct of the victim
in previous battering episodes) prior to the defendant's use of deadly force must be shown. Threatening
behavior or communication can satisfy the required imminence of danger.66 Considering such
circumstances and the existence of BWS, self-defense may be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense.67 In the
absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of the
victim.68 Thus, Marivic's killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that
would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that
mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for
review on any issue, including that which has not been raised by the parties.69

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced
with her husband constitutes a form of [cumulative] provocation which broke down her
psychological resistance and natural self-control. It is very clear that she developed heightened
sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced
at the hands of her abuser husband a state of psychological paralysis which can only be ended by
an act of violence on her part." 70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain
taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder.71 Expounding thereon, he said:

"Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the
battering. Third, the prolonged administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of the victim and another one is the
public and social support available to the victim. If nobody is interceding, the more she will go to
that disorder....

xxx xxx xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is
injury to the head, banging of the head like that. It is usually the very very severe stimulus that
precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a
pillow on the face, strangulating the individual, suffocating the individual, and boxing the
individual. In this situation therefore, the victim is heightened to painful stimulus, like for example
she is pregnant, she is very susceptible because the woman will not only protect herself, she is also
to protect the fetus. So the anxiety is heightened to the end [sic] degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?
 A The acute is the one that usually require only one battering and the individual will manifest now
a severe emotional instability, higher irritability remorse, restlessness, and fear and probably in
most [acute] cases the first thing will be happened to the individual will be thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is
longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6)
months you become chronic. It is stated in the book specifically that after six (6) months is
chronic. The [a]typical one is the repetitious battering but the individual who is abnormal and then
become normal. This is how you get neurosis from neurotic personality of these cases of
post[t]raumatic stress disorder." 72

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or
her mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated."73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in "cumulative
provocation which broke down her psychological resistance and natural self-control," "psychological
paralysis," and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that
diminished the exercise by appellant of her will power without, however, depriving her of consciousness of
her acts. There was, thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant
to paragraphs 974 and 1075 of Article 13 of the Revised Penal Code, this circumstance should be taken in
her favor and considered as a mitigating factor. 76

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this
state of mind is present when a crime is committed as a result of an uncontrollable burst of passion
provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome
reason.77 To appreciate this circumstance, the following requisites should concur: (1) there is an act, both
unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed from the
commission of the crime by a considerable length of time, during which the accused might recover her
normal equanimity.78

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being
killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in
which he had kept a gun. It should also be recalled that she was eight months pregnant at the time. The
attempt on her life was likewise on that of her fetus.79 His abusive and violent acts, an aggression which
was directed at the lives of both Marivic and her unborn child, naturally produced passion and obfuscation
overcoming her reason. Even though she was able to retreat to a separate room, her emotional and
mental state continued. According to her, she felt her blood pressure rise; she was filled with feelings of
self-pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the
cabinet drawer where Ben kept a gun, then she took the weapon and used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of time
within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's testimony80
that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality [or] trauma" --
the victim relives the beating or trauma as if it were real, although she is not actually being beaten at the
time. She cannot control "re-experiencing the whole thing, the most vicious and the trauma that she
suffered." She thinks "of nothing but the suffering." Such reliving which is beyond the control of a person
under similar circumstances, must have been what Marivic experienced during the brief time interval and
prevented her from recovering her normal equanimity. Accordingly, she should further be credited with
the mitigating circumstance of passion and obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and
obfuscation -- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery
inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of her
will power without depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her
prior to the killing. That the incident occurred when she was eight months pregnant with their child was
deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such
perception naturally produced passion and obfuscation on her part.

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means, methods or
forms in the execution thereof without risk to oneself arising from the defense that the offended party
might make.81 In order to qualify an act as treacherous, the circumstances invoked must be proven as
indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have
no place in the appreciation of evidence.82 Because of the gravity of the resulting offense, treachery must
be proved as conclusively as the killing itself.83

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon
appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had
been found lying in bed with an "open, depressed, circular" fracture located at the back of his head. As to
exactly how and when he had been fatally attacked, however, the prosecution failed to establish
indubitably. Only the following testimony of appellant leads us to the events surrounding his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front
neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that
'you might as well be killed so there will be nobody to nag me'

Q So you said that he dragged you towards the drawer?

A Yes, sir.
Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open
it because he did not have the key then he pulled his wallet which contained a blade about 3 inches
long and I was aware that he was going to kill me and I smashed his arm and then the wallet and
the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when
he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and
on that very moment everything on my mind was to pity on myself, then the feeling I had on that
very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx xxx xxx

Q You said that he dropped the blade, for the record will you please describe this blade about 3
inches long, how does it look like?

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx xxx xxx

ATTY. TABUCANON:
 Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to
the other room.

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was
admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was
frightened I was about to die because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at the same
time pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself and
I felt I was about to die also because of my blood pressure and the baby, so I got that gun and I
shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer."84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the rule
that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a
qualifying circumstance, because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant.85

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have
been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act
without risk from any defense that might be put up by the party attacked.86 There is no showing, though,
that the present appellant intentionally chose a specific means of successfully attacking her husband
without any risk to herself from any retaliatory act that he might make. To the contrary, it appears that
the thought of using the gun occurred to her only at about the same moment when she decided to kill her
batterer-spouse. In the absence of any convincing proof that she consciously and deliberately employed
the method by which she committed the crime in order to ensure its execution, this Court resolves the
doubt in her favor.87

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death.
Since two mitigating circumstances and no aggravating circumstance have been found to have attended
the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of
paragraph 588 of the same Code.89 The penalty of reclusion temporal in its medium period is imposable,
considering that two mitigating circumstances are to be taken into account in reducing the penalty by one
degree, and no other modifying circumstances were shown to have attended the commission of the
offense.90 Under the Indeterminate Sentence Law, the minimum of the penalty shall be within the range
of that which is next lower in degree -- prision mayor -- and the maximum shall be within the range of the
medium period of reclusion temporal.

Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of
prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion
temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has
already served the minimum period, she may now apply for and be released from detention on parole.91

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to
analyze and recognize vis-à-vis the given set of facts in the present case. The Court agonized on how to
apply the theory as a modern-day reality. It took great effort beyond the normal manner in which
decisions are made -- on the basis of existing law and jurisprudence applicable to the proven facts. To
give a just and proper resolution of the case, it endeavored to take a good look at studies conducted here
and abroad in order to understand the intricacies of the syndrome and the distinct personality of the
chronically abused person. Certainly, the Court has learned much. And definitely, the solicitor general and
appellant's counsel, Atty. Katrina Legarda, have helped it in such learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of law,
jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised Penal
Code. Only Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered woman
syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be
proven to have characterized at least two battering episodes between the appellant and her intimate
partner. Second, the final acute battering episode preceding the killing of the batterer must have produced
in the battered person's mind an actual fear of an imminent harm from her batterer and an honest belief
that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must
have posed probable -- not necessarily immediate and actual -- grave harm to the accused, based on the
history of violence perpetrated by the former against the latter. Taken altogether, these circumstances
could satisfy the requisites of self-defense. Under the existing facts of the present case, however, not all
of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However,
there being two (2) mitigating circumstances and no aggravating circumstance attending her commission
of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to
14 years, 8 months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her,
the director of the Bureau of Corrections may immediately RELEASE her from custody upon due
determination that she is eligible for parole, unless she is being held for some other lawful cause. Costs de
oficio.

SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.
 DISSENTING OPINION

YNARES-SANTIAGO, J.:

In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio V.
Panganiban found that there was no factual basis to conclude that Marivic was suffering from "Battered
Woman Syndrome" (BWS) at the time she took the life of her husband. With due respect, I register my
dissent.

The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of self-
defense. It operates upon the premise that a woman who has been cyclically abused and controlled over a
period of time develops a fearful state of mind. Living in constant danger of harm or death, she knows
that future beatings are almost certain to occur and will escalate over time. Her intimate knowledge of the
violent nature of her batterer makes her alert to when a particular attack is forthcoming, and when it will
seriously threaten her survival. Trapped in a cycle of violence and constant fear, it is not unlikely that she
would succumb to her helplessness and fail to perceive possible solutions to the problem other than to
injure or kill her batterer. She is seized by fear of an existing or impending lethal aggression and thus
would have no opportunity beforehand to deliberate on her acts and to choose a less fatal means of
eliminating her sufferings.1

As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to wit: (1)
the tension-building phase, where minor batterings in the form of verbal or slight physical abuse occurs.
Here, the woman tries to pacify the batterer through a show of kind, nurturing behavior; or by simply
staying out of his way; (2) the acute battering incident phase which is characterized by brutality,
destructiveness and sometimes, death. The battered woman usually realizes that she cannot reason with
him and that resistance would only exacerbate her condition; and (3) the tranquil period, where the
couple experience a compound relief and the batterer may show a tender and nurturing behavior towards
his partner.

Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more than
one occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's witnesses
clearly reveal that she knew exactly when she would once again be subjected to acute battery. Her cousin,
Ecel Arano, testified that she often asked the latter to sleep in her house as she was afraid every time her
husband came home drunk. Clearly, whenever appellant requested for Arano's company, she was
experiencing a tension-building phase. The barangay captain, Panfilo Tero, also testified that appellant
sought his help two months before she killed her husband, again demonstrating that she was in the
tension-building phase and was attempting to prevent another incident of acute battery. Appellant
presented evidence to prove that the tension-building phase would occur whenever her husband would go
out looking for other women, would lose at cockfights or would come home drunk. She often tried to
ignore her husband's attitude or, as testified to by some witnesses for the prosecution, even shouted
back, fought off or even injured her husband during the tension-building phase, if only to prevent the
onset of acute battery.

Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to the
death of her husband, i.e., when she knew or felt that she was going to be killed by the deceased. She
could not possibly have testified with clarity as to prior tension-building phases in the cycle as she had
never tried to kill her husband before this time.

It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant would
seek shelter in her mother's or her father's house after an acute battering incident, after which would
begin the process of begging for forgiveness, promises of change in behavior and return to the conjugal
home, only for the same cycle to begin all over again.

To require appellant to prove the state of mind of the deceased, as seems to be required in the ponencia,
would mean that no person would ever be able to prove self-defense in a battered woman case. Appellant
could not possibly prove whether the deceased felt provoked into battering by any act or omission of
appellant. She cannot possibly prove that she felt herself to be the sole support of the deceased's
emotional stability and well-being. Nevertheless, appellant felt trapped and helpless in the relationship as,
in the end, she resorted to killing her husband as no one could or did help her, whether out of fear or
insensitivity, during the violent marriage she endured.

The "acute battering incident stage" was well demonstrated by the severe beatings suffered by Marivic in
the hands of the deceased as well as the threats to kill her using a bolo or a cutter. 2 The physical abuses
occurred at least 3 times a week in the 11 miserable years of their marriage, 3 six incidents of which were
documented by the 1990-1995 medical records of Marivic. They included, among others, hematoma,
contusion, and pain on the breasts; multiple contusions and trauma on the different parts of her body
even during her pregnancy in 1995.4 The tranquil period underwent by Marivic was shown by the repeated
"kiss and make-up" episodes of their relationship. On more than 5 occasions, Marivic ran to her parents'
house after violent fights with the deceased only to forgive the latter every time he would fetch her and
promise to change.5

All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in the
mind of Marivic making her believe that a forthcoming attack from the deceased would cause her death.
This state of mind of Marivic was revealed in her testimony given way back in 1998, before she was
examined by experts on BWS. Unaware of the significance of her declarations, she candidly narrated how
she felt immediately before she killed the deceased, thus -

ATTY. TABUCANON

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx xxx xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open
it because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3
inches long and I was aware that he was going to kill me and I smashed his arm and then the
wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long,
and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the room,
and on that very moment everything on my mind was pity on myself, then the feeling I had on that
very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

xxx xxx xxx6

Q What else happened?

A When I was in the room, I felt the same thing like what happened before I was admitted in
PHILPHOS Clinic, I was about to vomit. I know my blood pressure has raised. I was frightened I
was about to die because of my blood pressure.

xxx xxx xxx

A Considering all the physical sufferings that I've been through him, I took pity on myself and I felt
I was about to die also because of my blood pressure and the baby, so I got the gun and shot
him.7
It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic before the
lower court but only here on automatic review. This makes the foregoing testimony more worthy of great
weight and credence considering that the same could not have been cunningly given to suit or conform to
the profile of a battered woman.

Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino Caing
testified that he treated Marivic for hypertension due to domestically related emotional stress on 23
separate occasions. The latest one was on November 6, 1995 when she suffered from severe hypertension
and had a blood pressure of 180/120 on the 8 th month of her pregnancy.8

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined Marivic,
assessed the effects of the repeated violence on the latter as follows:

A What I remember ... was it was more than ten years that she was suffering from emotional
anguish. There were a lot of instance of abuses, ... emotional abuse...verbal abuse and... physical
abuse. The husband had very meager income, she was the one who was practically the bread
earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking,
even womanizing, being involved in cockfighting and in going home very angry which... triggered a
lot of physical abuse. She also had the experience of taunting from the husband for the reason that
the husband even accused her of infidelity, the husband was saying that the child she was carrying
was not his own. So she was very angry, she was at the same time very depressed because she ..
.[felt] almost like living in purgatory or even in hell when it was happening day in and day out.

xxx xxx xxx

Q And what was it that triggered ... that tragedy in your opinion?

A I think for several weeks, she was already having all those tensions, all those anxieties, they
were not enough, that the husband was even going to cockfighting x x x

A She was angry with him, he was angry with her and I think he dragged her and even spun her
around. She tried to fight him so there was a lot of fight and when she was able to escape, she
went to another room and she locked herself with the children. And when the husband was for a
while very angry he calms down then and then (sic). But I remember before that the husband was
looking for the gun and I think he was not able to open the cabinet because she had the key. So
during that time, I remember, that she was very much afraid of him, so when the husband calmed
down and he was asleep, all she was concerned was to end up her misery, to save her child which
she was carrying and to save her two children. I believe that somehow she's not rational. 9

xxx xxx xxx

PROS. TRUYA

Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this case that
the books you studied in the expertise in line and in the 77 hour contact with appellant Mrs.
Genosa, could you say that this is not ordinary self-defense but a survival on her part?

A Yes, sir.

Q To what she did to her husband (sic)?

A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to survive with
her two sons and [the] child she's bringing.

Q Had she not able to kill her husband, would she still be in the very short moment with the victim
(sic)?
 A If she did not do that she believes that she will be the one who would be killed. 10

There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that it
was an apprehension of death and the instinct to defend her and her unborn child's life that drove her to
kill her husband.

The ponente further refused to sustain the self-defense proffered by Marivic because there was allegedly
no aggression or danger posed on her life by the victim at the time she attacked the latter. Again, I beg to
disagree.

Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack must be
imminent and actually in existence. This interpretation must, however, be re-evaluated vis-a-vis the
recognized inherent characteristic of the psyche of a person afflicted with the "Battered Woman
Syndrome." As previously discussed, women afflicted by this syndrome live in constant fear for their life
and thus respond in self-defense. Once BWS and an impending danger based on the conduct of the
deceased in previous battering episodes are established, actual occurrence of an assault is no longer a
condition sine qua non before self defense may be upheld. Threatening behavior or communication can
satisfy the required imminence of danger. As stated in the ponencia, to require the battered person to
await an obvious deadly attack before she can defend her life would amount to sentencing her to murder
by installment.

In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the physical
assaults and an attempt to shoot Marivic when she was 8 months pregnant, took the place of unlawful
aggression, thus entitling her to a complete self defense even if there was no actual employment of
violence by the deceased at the time of the killing. Marivic had every reason to believe that the deceased
would kill her that night not only because the latter was verbally threatening to kill her while attempting to
get a gun from the drawer, but more importantly because the deceased wounded her on the wrist with a
bolo, and because of the deceased's previous conduct of threatening to cut her throat with a cutter which
he kept in his wallet. Quoted hereunder are the relevant testimonies of Marivic -

A When I arrived home, he was already in his usual behavior.

xxx xxx xxx

A He was drunk again, he was yelling in his usual unruly behavior.

xxx xxx xxx

A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble for
fear that he will beat me again. Perhaps he was disappointed because I just ignore[d] hi[s]
provocation and he switch off the light and I said to him, "why did you switch off the light when the
children were there." At that time I was also attending to my children who were doing their
assignments. He was angry with me for not answering his challenge, so he went to the kitchen and
g[o]t a bolo and cut the antenna wire to stop me from watching television.

xxx xxx xxx

A He switch[ed] off the light and the children were shouting because they were scared and he was
already holding a bolo.

Q How do you describe this bolo?

A 1 1/2 feet.

xxx xxx xxx

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I ran to the room.

Q What do you mean that he was about to attack you?

A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside.11

xxx xxx xxx

COURT

To the witness

xxx xxx xxx

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?

A Bolo.

Q Were you wounded or were there inflictions on your body when he was holding and trying to
frighten you [with] that bolo?

A No, only here.

COURT INTERPRETER

(The witness pointed to her wrist).

COURT

To the witness

Q You were demonstrating a motion, whirling, did your husband really whirl you?

A Yes, your Honor.

Q How did he whirl you?

A Whirled around.

Q Just like spinning.

xxx xxx xxx

Q Where did he whirl you, was it inside the bedroom or outside?

A In our bedroom.

Q Then after the whirling what happened?

A He kicked my ass and then I screamed.12

xxx xxx xxx

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do...?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.13

A I was frightened that my husband would hurt me, so I packed all his things then on the following
day I will leave, I was afraid and I want to make sure I would deliver my baby safely.14

xxx xxx xxx

A After a couple of hours, he went back again and got angry with me for packing his clothes, then
he dragged me again outside of the bedroom holding my neck.

ATTY. TABUCANON

Q You said that when Ben came back to your house, he dragged you? How did he drag... you?

COURT INTERPRETER

(The witness demonstrated to the Court by using her right hand flexed forcibly in her front
neck)

A And he dragged me towards the door backwards.

ATTY. TABUCANON

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept shouting at me that "you
might as well be killed so there will be nobody to nag me.

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx xxx xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open
it because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3
inches long and I was aware that he was going to kill me and I smashed his arm and then the
wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long,
and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the room,
and on that very moment everything on my mind was pity on myself, then the feeling I had on that
very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

xxx xxx xxx

Q You said that he dropped the blade, for the record will you please

describe this blade about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes sir, that was the object used when he intimidate me. 15

RE-DIRECT BY ATTY. TABUCANON

Q In other words, there were two (2) incidents, the first incident and then he left and then two (2)
hours after he came back?

A Yes, sir.

Q And the whirling happened in the first incident?

A Yes, sir.

Q And the dragging with arms flexed in her neck and on that blade

happened on the second incident (sic)?

A Ye, sir.

xxx xxx xxx

COURT

To the witness

Q Why, what is that blade about?

A A cutter about 3 inches long.

Q Who used that?

 A Ben.

Q He used that on you?

A He scared me on that (sic).

xxx xxx xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).16

There are many things which cannot be proved by direct evidence. One of this is state of mind. In the
case at bar, there is more than sufficient physical evidence presented by the appellant from which her
mental state can be inferred. The prosecution did not object to the presentation of these physical and
testimonial pieces of evidence, namely, the medical records of 23 instances of domestic violence-related
injuries and the testimonies of neighbors, cousins and even the barangay captain. Indeed, no person
would endure 23 reported instances of beatings if she were planning to kill her spouse in the first place.
The majority need not worry that women around the country will mastermind the killings of their
husbands and then use this Decision to bolster their attempts to employ the BWS defense.

Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of passion
and obfuscation. This, at the very least, supports a finding that the acts of violence and battery committed
by the deceased were illegal and unlawful and were committed immediately before appellant could recover
her natural equanimity. But what is the natural equanimity of a battered woman? Appellant was not a
normal married woman. She can never be in a state of natural equanimity as she was in a constant state
of alertness and hypersensitivity to the next phase of acute battery. The esteemed ponente also correctly
found that the appellant acted with diminished will-power. However, he failed to go further. In the case of
People v. Javier,17 it was held:

Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed
mitigating circumstance of illness. In this case, however, aside from the testimony of the accused that his
mind went blank when he killed his wife due to loss of sleep, no medical finding was presented regarding
his mental condition at the time of the killing. This Court can hardly rely on the bare allegations of
accused-appellant, nor on mere presumptions and conjectures. No clear and convincing evidence was
shown that accused-appellant was suffering an illness which diminished his exercise of will-power at the
time of the killing.18

In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that she
was a battered woman for 13-14 years and that she suffered from the "Battered Woman Syndrome".
Expert testimony was presented and admitted to this effect, such that the ponente ably discussed the
causes and effects of the syndrome. To ignore the testimony and the evidence thus presented is to make
impossible the proof of mental state. Evidence as to the mental state need not be also "beyond reasonable
doubt."

Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes was
sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS justified the
killing of the deceased. The danger posed or created in her mind by the latter's threats using bladed
weapons, bred a state of fear, where under the circumstances, the natural response of the battered
woman would be to defend herself even at the cost of taking the life of the batterer.

The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is a

noble recognition of the plight of, and a triumph for battered women who are trapped in a culture of
silence, shame, and fear. This would however be an empty victory if we deliberately close our eyes to the
antecedents of this case. The facts are simple. Marivic was suffering from the "Battered Woman
Syndrome" and was defending herself when she killed her husband. Her acquittal of the charge of
parricide is therefore in order.
IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.