"That on or about the 21st day of December, 1995, in the Municipality of Navotas, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused armed with a gun, conspiring, confederating and helping one another, with intent to kill, treachery and evident premeditation, did then and there, willfully, unlawfully, and feloniously attack, assault and shoot LEO LATOJA, hitting the latter on the different parts of his body, thereby inflicting upon the victim gunshot wounds which caused his immediate death."

"On December 21, 1995, at about 5:00 o’clock in the morning, near the Immaculate Memorial Park in Bagong Silang, Navotas, Metro Manila, Estelita Latoja gave her son Leo, who was already on board a tricycle on his way to work, transportation money. Having done so, Estelita took about two steps on her way back home, it did not take long when she heard a gunshot. Estelita, who was then only about a meter away from Leo, saw Silva who was with two other companions named Araneta and Gulane, holding a gun still directed at Leo.

Estelita shouted to Silva "Huwag, Huwag. Anak ko iyan". Leo, on the other hand, said to Silva "Huwag. Hindi tayo magkatalo." Leo’s wife, Shirley, who was present at that time, was not able to say or do anything.

Estelita approached Silva who hit her at the left side of the head as he pushed her aside and thereafter fired his gun to (sic) Leo. Estelita added that Gulane was also armed with a gun and that he fired about four shots at Leo who was hit thereby. Araneta also fired his gun at Leo. Thereafter, the three fled."6 [Decision, pp. 3-4; Rollo. pp. 18-19.]

"WHEREFORE, premises considered, judgment is hereby rendered finding accused Robert Araneta also known as Gilbert Araneta alias Gilbert guilty beyond reasonable of the crime of Murder, defined and penalized under Article 248 of the Revised Penal Code. In the absence of any other aggravating circumstance, he is hereby sentenced to suffer the prison term of reclusion perpetua, together with all the accessory penalties thereof.

Accused Araneta is also ordered to pay his proportionate share in the costs and in the damages awarded to Estelita Latoja under the decision of this Court in this case as against accused Silva and Gulane which will be equivalent to 1/3 of the total amounts provided in said decision."7 [Decision, p. 8; Rollo, p. 24.]

"THE COURT A QUO GRAVELY ERRED IN FINDING ACCUSED-APPELLANT ROBERT ARANETA GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER DEFINED AND PENALIZED UNDER ARTICLE 248 OF THE REVISED PENAL CODE, AS AMENDED."8 [Appellant’s Brief, p. 1; Rollo, p. 41.]

"The trial court reasoned that the killing was attended by treachery because the suddenness of the attack caught Leo offguard thus preventing him from putting up any defense. We ruled in a litany of cases that treachery cannot be presumed; it must be proved by clear and convincing evidence or as conclusively as the killing itself. The same degree of proof to dispel any reasonable doubt is required before treachery may be considered either as an aggravating or qualifying circumstance. Further, treachery must be based on some positive conclusive proof and not only upon hypothetical facts or on mere suppositions or presumptions.

The trial court erred when it presumed that the killing was qualified by treachery although the record shows that the witness did not see the commencement of the assault. Estelita testified that she noticed accused-appellants only after she heard the first shot -

In her earlier testimony, Estelita explained that it was the first shot that prompted her to turn her head and it was only then that she saw Gerry Silva pointing his gun at her son who was already bloodied. These statements are fraught with possibilities. Nagging doubts would crop up as to how the three (3) assailants started the assault considering that there was an interval of time from the moment Estelita’s back was towards Leo until she heard the first shot. Before that she did not notice the presence of accused-appellants. One can argue that between the time when Estelita’s back was turned from the victim after she had taken about two (2) steps away and the first shot, there was a lapse of more or less four (4) seconds. No other logical conclusion then could be drawn but that the attack was sudden and unexpected. But this is not that simple. Where all indicia tend to support the conclusion that the attack was sudden and unexpected but there are no precise data on this point, treachery cannot be taken into account. It can in no way be established from mere suppositions, drawn from the circumstances prior to the moment of the aggression, that the accused perpetrated the killing with treachery.

In the same manner, evident premeditation cannot be appreciated to qualify the killing to murder in the absence of direct evidence of the planning and preparation to kill or when the plan was conceived. This trial court overlooked when it observed, as earlier mentioned, that the time when the attack was made, being after daybreak, precluded an accidental encounter between Leo and his assailants. It would require planning on the part of the assailants on when and how they would accomplish their criminal intent. Hence the presence of evident premeditation according to the trial court.

The reasoning of the trial court is oft-tangent and cannot be sustained. There is simply no causal connection between the time when the crime was committed, which was at daybreak, and the possibility of any accidental meeting between the protagonists. Premeditation cannot be appreciated if the evidence does not show when the plan to kill was hatched, or how much time had elapsed before it was carried out. There must be a basis for determining whether the accused had sufficient time between the inception of the plan and its fulfillment to dispassionately consider and accept its consequences. The records do not reveal a jot of evidence showing the time that accused-appellants conceived the plan and made preparations to kill Leo Latoja. The mere fact that the victim was attacked just after daybreak cannot give rise to the presumption that the killing was premeditated. The finding by the trial court is merely an inference drawn from the surrounding circumstances of the case which is simply devoid of any factual mooring.

Where the attack was not treacherous, the number of aggressors would constitute only abuse of superiority. Thus considering that the victim when assaulted was unarmed, he was, therefore, no match to his three (3) adversaries who were all armed with handguns. Our jurisprudence is exemplified by the holding that where three (3) armed persons attacked the defenseless victim but there was no proof as to how the attack commenced and treachery was not proved, the fact that there were three (3) armed assailants would constitute abuse of superior strength.

Absent the qualifying circumstance of treachery or evident premeditation in the killing of the victim, the crime committed can only be homicide, not murder. With the generic aggravating circumstance of abuse of superiority and the absence of any mitigating circumstance, the penalty for homicide, which is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years, the same to be imposed in its maximum period the range of which is seventeen (17) years four (4) months and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which six (6) years and one (1) day to twelve (12) years, in any of its periods, while the maximum shall be taken from the maximum of the imposable penalty in view of the generic aggravating circumstance of abuse of superiority."19 [People vs. Silva, Supra at pp. 8-12.]