EN BANC

[G.R. NO. 128359. December 6, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO E. DELA CRUZ, accused-appellant.

D E C I S I O N

VITUG, J.:

For automatic review is the decision, dated 27 November 1996, of the Regional Trial Court, Branch 27, of Cabanatuan City, which has sentenced to death Roberto E. de la Cruz for “Qualified Illegal Possession of Firearm and Ammunition with Homicide.”

The information charging the accused with the offense, to which he pled “not guilty” when arraigned, read:

“That on or about the 27th day of May, 1996, in the City of Cabanatuan, Republic of the Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill, did then and there, wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of one DANIEL MACAPAGAL, by shooting the latter with the use of an unlicensed Caliber .38 snub nose firearm, with Serial No. 120958, thereby inflicting upon him gunshot wounds on different parts of his body, which caused also his death.”¹ Rollo, p. 11.1

The facts relied upon by the trial court in its judgment were narrated by the Office of the Solicitor General in the People’s brief.

“The victim Daniel Macapagal, a married man, had been a live-in partner of prosecution witness Ma. Luz Perla San Antonio for about two to three years before San Antonio took appellant Roberto dela Cruz, widower, as lover and live-in partner. At the time of the incident on May 27, 1996, appellant and San Antonio were living in a house being rented by San Antonio at 094 Valino District, Magsaysay Norte, Cabanatuan City (pp. 2-3, TSN, July 6, 1996).

“At around 6:00 o’clock in the evening on May 27, 1996, San Antonio and appellant were resting in their bedroom when they heard a car stop in front of their house and later knocks on their door. San Antonio opened the front door and she was confronted by Macapagal who made his way inside the house holding a gun in his hand, despite San Antonio’s refusal to let him in. He seemed to be looking for something or somebody as Macapagal walked passed San Antonio and inspected the two opened bedrooms of the house. He then went to the closed bedroom where appellant was and banged at the door with his gun while yelling `Come out. Come out’ (p. 4, Ibid.). Appellant then opened the door but he was greeted by Macapagal’s gun which was pointed at him. Appellant immediately closed the door while Macapagal continued banging at it. When appellant again opened the door moments later, he was himself armed with a .38 caliber revolver. The two at that instant immediately grappled for each other’s firearm. A few moments later shots were heard. Macapagal fell dead on the floor.

“Appellant told San Antonio to call the police on the phone. After a few minutes police officers arrived at the scene. They saw the dead body of Macapagal slumped on the floor holding a gun. San Antonio met them on the door and appellant was by then sitting. He stood up to pick his .38 caliber revolver which he surrendered to SPO3 Felix Castro, Jr. Appellant told the police that he shot Macapagal in self-defense and went with them to the police station.

“Dr. Jun Concepcion, Senior Medical Officer of the Cabanatuan City General Hospital, performed an autopsy on the cadaver of Macapagal and submitted a report thereon (Exhibit H). Macapagal sustained four (4) gunshot wounds. Three of the wounds were non-penetrating or those that did not penetrate a vital organ of the human body. They were found in the upper jaw of the left side of the face, below the left shoulder and the right side of the waist. Another gunshot wound on the left side of the chest penetrated the heart and killed Macapagal instantly.

“It was later found by the police that the firearm used by Macapagal was a 9mm caliber pistol. It had one magazine loaded with twelve (12) live ammunition but an examination of the gun showed that its chamber was not loaded.

“Macapagal had a license to carry said firearm. On the other hand, appellant, who denied ownership of the .38 caliber revolver he used, had no license therefor.”² Rollo, pp. 125-127.2

Unmoved by the claim of self-defense invoked by the accused, the trial court pronounced a judgment of guilt and handed a death sentence.

“WHEREFORE, premises considered, the Court finds and so declares the accused ROBERTO DELA CRUZ guilty beyond reasonable doubt of the crime of Qualified Illegal Possession of Firearm and Ammunition with Homicide, which is penalized under Presidential Decree 1866, Sec. 1, and he is hereby sentenced to suffer death; he is, likewise ordered to indemnify the heirs of the deceased victim in the sum of P50,000.00; to pay actual damages in the sum of P65,000.00 representing burial and interment expenses; and the sum of P2,865,600.00 representing loss of income.”³ Rollo, p. 38.3

In his plea to this Court, accused-appellant submits that the decision of the court a quo is bereft of factual and legal justification.

When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing has been legally justified.⁴ People vs. Galapin, 293 SCRA 474.4 Having owned the killing of the victim, the accused should be able to prove to the satisfaction of the court the elements of self-defense in order that he might be able to rightly avail himself of the extenuating circumstance.⁵ People vs. Baniel, 275 SCRA 472.5 He must discharge this burden by clear and convincing evidence. When successful, an otherwise felonious deed would be excused mainly predicated on the lack of criminal intent of the accused. Self-defense requires that there be (1) an unlawful aggression by the person injured or killed by the offender, (2) reasonable necessity of the means employed to prevent or repel that unlawful aggression, and (3) lack of sufficient provocation on the part of the person defending himself.⁶ See People vs. Demonteverde, 290 SCRA 175.6 All these conditions must concur.⁷ Art. 11, par. 1, Revised Penal Code.7

Here, the Court scarcely finds reversible error on the part of the trial court in rejecting the claim of self-defense.

Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and unexpected attack or imminent danger on the life and limb of a person - not a mere threatening or intimidating attitude⁸ People vs. De Gracia, 264 SCRA 200.8 - but, most importantly, at the time the defensive action was taken against the aggressor. True, the victim barged into the house of accused-appellant and his live-in partner and, banging at the master bedroom door with his firearm, he yelled, “come out.” Accused-appellant, however, upon opening the door and seeing the victim pointing a gun at him, was able to prevent at this stage harm to himself by promptly closing the door. He could have stopped there. Instead, accused-appellant, taking his .38 caliber revolver, again opened the bedroom door and, brandishing his own firearm, forthwith confronted the victim. At this encounter, accused-appellant would be quite hardput to still claim self-defense.⁹ Unlawful aggression is, of course, primordial; it must be real, i.e., an actual, sudden, and unexpected attack or an imminent danger thereof, and not just a threatening or intimidating attitude. (People vs. Maalat, 275 SCRA 206.)9

The second element of self-defense would demand that the means employed to quell the unlawful aggression were reasonable and necessary. The number of the wounds sustained by the deceased in this case would negate the existence of this indispensable component of self-defense.¹⁰ People vs. Babor, 262 SCRA 359.10 The autopsy report would show that the victim sustained four gunshot wounds -

“1. Gunshot wound on the (L) shoulder as point of entry with trajectory toward the (L) supra-scapular area as point of exit (through-through);

“2. Gunshot wound on the abdomen ® side laterally as point of entry (+) for burned gun powder superficially with trajectory towards on the same side as point of exit, through-through;

“3. Gunshot wound on the anterior chest (L) mid-clavicular line, level 5th ICS as point of entry with trajectory towards the (L) flank as point of exit (through-through) Internally: penetrating the heart (through-through) anterior then posterior then (L) hemidia-prhagm and stomach; and

“4. Lacerated wound linear 1/2 inch in length (L) cheek area”¹¹ Rollo, p. 34.11 -

which would, in fact, indicate a determined effort to kill.¹² People vs. Maceda, 197 SCRA 499.12

It would be essential, finally, for self-defense to be aptly invoked that there be lack of sufficient provocation on the part of the person defending himself. When accused-appellant, opening the bedroom door the second time, confronted, instead of merely taking precautionary measures against, the victim with his own gun he had taken from the cabinet, accused-appellant could no longer correctly argue that there utterly was no provocation on his part.

The elements of illegal possession of firearm are (1) the existence of the subject firearm, (2) the ownership or possession of the firearm, and (3) the absence of the corresponding license therefor.¹³ People vs. Bergante, 286 SCRA 629.13

Accused-appellant claims that he did not have animus possidendi in the use and possession of the .38 caliber revolver since he has used it for just a “fleeting moment” to defend himself. This assertion is not supported by the evidence. Apparently, the subject revolver has all the while been kept in the house of accused-appellant and his live-in partner. Accused-appellant himself has thusly testified:

“Q When for the first time did you see that firearm inside the drawer of Candy?

“A Since the last week of April, sir.

“Q Did you ask Candy why she was in possession of that gun?

“A Once I opened her drawer and I asked her who owns that gun, sir.

“Q And what was her reply as to who owns that gun?

“A According to her that firearm was used as payment by a group of persons who were her customers at the Videoke, sir.

“Q And what else did Candy tell you about that firearm, if you know?

“A She also told me that we can use that gun for protection, sir.”¹⁴ TSN, 17 October 1996, p. 20.14

The trial court has erred, however, in imposing the death penalty on accused-appellant. Presidential Decree No. 1866 is already amended by Republic Act No. 8294. Section 1, third paragraph, of the amendatory law provides that “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.” The provision is clear, and there would be no need to still belabor the matter.¹⁵ People vs. Molina, 292 SCRA 742.15

The mitigating circumstance of voluntary surrender should be considered in favor of accused-appellant. Immediately following the shooting incident, he instructed his live-in partner to call the police and report the incident. He waited for the arrival of the authorities and readily acknowledged before them his having been responsible for the shooting of the victim.¹⁶ The elements of voluntary surrender are that (1) the offender has not been actually arrested; (2) he surrender himself to a person in authority or an agent of a person in authority; and (3) his surrender was voluntary (People vs. Medina, 286 SCRA 44).16

The aggravating circumstance of the use of unlicensed firearm being effectively offset by the mitigating circumstance of voluntary surrender,¹⁷ Presidential Decree No. 1866 not having provided otherwise.17 the penalty prescribed by law for the offense should be imposed in its medium period.¹⁸ Article 64, Revised Penal Code.18 Article 249 of the Revised Penal Code prescribes the penalty of reclusion temporal in the crime of homicide, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the maximum of the penalty shall be taken from the medium period of reclusion temporal, i.e., from fourteen (14) years, eight (8) months, and one (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, anywhere in its range of from six (6) years and one (1) day to twelve (12) years.

The amount of P2,865,600.00 awarded by the trial court as damages for loss of earning capacity should be modified. The testimony of the victim’s surviving spouse, Marina Villa Juan Macapagal, on the earning capacity of her husband Daniel Macapagal sufficiently established the basis for making possible such an award.¹⁹ People vs. Verde, 302 SCRA 690; Pantranco North Express, Inc. vs. Baesa, 179 SCRA 384.19 The deceased was 44 years old at the time of his death in 1996, with a gross monthly income of P9,950.00.²⁰ TSN of Marina Macapagal, 15 August 1996, p. 10.20 In accordance with the American Expectancy Table of Mortality adopted in several cases²¹ People vs. Verde, 302 SCRA 690; Sanitary Steam Laundry, Inc. vs. Court of Appeals, 300 SCRA 20; Metro Manila Transit Corp. vs. Court of Appeals, 298 SCRA 495; Negros Navigation Co., Inc. vs. Court of Appeals, 281 SCRA 534; Villa-Rey Transit, Inc. vs. Court of Appeals, 31 SCRA 511.21 decided by this Court, the loss of his earning capacity should be calculated thusly:

Gross less living

Net earning capacity (x) = life expectancy x annual - expenses

income (50% of gross

annual income)

or

x = 2(80-44) x [119,400.00 - 59,700.00]

3

= 24 x 59,700.00

= P1,432,800.00

WHEREFORE, the decision appealed from is MODIFIED. Accused-appellant ROBERTO DELA CRUZ y ESGUERRA is hereby held guilty of HOMICIDE with the use of an unlicensed firearm, an aggravating circumstance that is offset by the mitigating circumstance of voluntary surrender, and he is accordingly sentenced to an indeterminate penalty of nine (9) years and one (1) day of prision mayor as minimum to sixteen (16) years and one (1) day of reclusion temporal as maximum. The award of P2,865,600.00 for loss of earning is reduced to P1,432,800.00. In other respects, the judgment of the trial court is AFFIRMED.

In the service of his sentence, accused-appellant shall be credited with the full time of his preventive detention if they have agreed voluntarily and in writing to abide by the same disciplinary rules imposed upon convicted prisoners pursuant to Article 29 of the Revised Penal Code.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.