G.R. No. 238755. Nov 28, 2018

THIRD DIVISION: [G.R. No. 238755, November 28, 2018] PEOPLE OF THE PHILIPPINES V. DIEGO VERALLO Y VILLEGAS.

This is an appeal by certiorari from the January 11, 2017 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR HC No. 07597 which affirmed the June 29, 2015 Joint Decision[2] of the Regional Trial Court of Parañaque City, Branch 195 (RTC), finding accused-appellant Diego VeralloyVillegas (appellant) guilty beyond reasonable doubt of murder, frustrated murder, and two counts of attempted murder.

Antecedents

In the evening of March 24, 2006, a shooting incident took place on Bayabas Street, Sampaloc Site II, Sucat, Parañaque City, which resulted in the death of Royston M. Carandang ( Royston) and infliction of gunshot wounds on Marife Leonardo (Marife), Estrellita A. Carandang (Estrellita), and Michael Ian Tula (Michael).

After the preliminary investigation, appellant, Dennis Catolico (Dennis) and Frankie Lipata y Dula (Frankie) were formally charged with murder, two counts of frustrated murder, and attempted murder, as shown in the following second amended informations[3]:

Criminal Case No. 06-0438

That on or about the 24th day of March 2006, in the City of Parañaque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one John Doe, whose true name and present whereabouts is still unknown and all of them mutually helping and aiding one another, armed with firearms, with intent to kill and with treachery and evident premeditation, and abuse of superior strength, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one ROYSTON MUNCAL CARANDANG, thereby inflicting upon him mortal gunshot wounds which directly caused his death.

CONTRARY TO LAW.[4]

Criminal Case No. 06-0439

That on or about the 24th day of March 2006, in the City of Parañaque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one John Doe, whose true name and present whereabouts is still unknown and all of them mutually helping, and aiding one another, armed with firearms, with intent to kill, treachery and evident premeditation, did then and there wilfully, unlawfully, and feloniously attack, assault, shoot, and employ personal violence upon the person of one ESTRELLITA AGUILA CARANDANG, on her left upper buttock, thereby inflicting upon her injuries which should have produced the crime of Murder, as a consequence, but nevertheless did not produce it by reason of cause or causes independent of their will, that is, due to the timely and able medical assistance rendered to said ESTRELLITA AGUILA CARANDANG, which prevented her death.

CONTRARY TO LAW.[5]

Criminal Case No. 06-0440

That on or about the 24th day of March 2006, in the City of Parañaque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one John Doe, whose true name and present whereabouts is still unknown and all of them mutually helping and aiding one another, armed with firearms, with intent to kill, treachery and evident premeditation, did then and there wilfully, unlawfully, and feloniously attack, assault, shoot, and employ personal violence upon the person of one MARIFE LEONARDO, on her stomach and right knee, thereby inflicting upon her injuries which should have produced the crime of Murder, as a consequence, but nevertheless did not produce it by reason of cause or causes independent of their will, that is, due to the timely and able medical assistance rendered to said MARIFE LEONARDO, which prevented her death.

CONTRARY TO LAW.[6]

Criminal Case No. 06-0441

That on or about the 24th day of March 2006, in the City of Parañaque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one John Doe, whose true name and present whereabouts is still unknown and all of them mutually helping, and aiding one another, with intent to kill, without justifiable cause and with abuse of superior strength, did then and there wilfully, unlawfully, and feloniously attack, assault, shoot, and employ personal violence upon the person of one MICHAEL IAN TULA, hitting his left knee, thereby commencing the commission of the crime of Murder directly by overt acts but the said accused did not perform all the acts of execution which should have produced the crime of Murder as a consequence by reason of cause or causes other than their own spontaneous desistance, that is, due to the timely and able medical assistance rendered to said complainant.

CONTRARY TO LAW.[7]

When arraigned, appellant duly assisted by counsel pleaded not guilty to the charges. His co-accused, Dennis and Frankie, remained at large.

During the trial, the prosecution presented as eyewitnesses to the shooting Marlon Leonardo (Marlon), Michael, George Edmilao (George), and Rosita Carandang (Rosita), along with the following physicians on their respective medical findings: Dr. Jerome Grajeda (Dr. Grajeda), Dr. Voltaire P. Nulud (Dr. Nulud), and Dr. Leo Principe (Dr. Principe). Appellant and his tenant, Rodrigo Galam (Galam), testified for the defense.

Version of the Prosecution

On March 24, 2006, at around 8 o'clock in the evening, Marlon and his cousin Royston, friend Michael, sister Marife, and aunt Estrellita were hanging out at the sari-sari store of Royston's aunt, Rosita, located at No. 41 Bayabas St., Sampaloc Site II, Barangay BF Homes, Parañaque City. Also present were one "Nocnoc," Christopher Gulaher, and Maloni Leonardo. They were all seated and chatting in front of the store.

Royston was busy with his cellphone when appellant together with his co-accused arrived, all armed with guns, coming from the outer road or "labasan" Appellant and Dennis were the first to approach Royston's group, followed by the two other co-accused. Appellant suddenly pointed his "super" .38-caliber short firearm at Royston and pulled the trigger. After appellant had fired three or five shots, Dennis was also seen firing his gun. The four assailants began shooting indiscriminately at the people in front of the store who scampered to safety.

Royston fell and even knelt before appellant pleading, "Tama na," but appellant fired two more shots at him. Appellant also fired at Marife, hitting her just below the navel. Michael ran for cover but appellant shot him on the knee. Estrellita was hit on her lower middle back during the indiscriminate Firing. Thereafter, the assailants casually walked down towards the end of Bayabas Street.

Marlon found the wounded Michael and Marife, as well as their other companions, inside the store. Estrellita followed him inside. The rest of the group helped bring the victims to the Parañaque City Medical Center. A neighbor, George, hid behind a video karera at the garage of the store while the shooting was going on. He brought Royston to the same hospital but the latter was pronounced dead on arrival. Marife was confined and underwent surgery due to serious injury on her small intestine. Michael and Estrellita were also treated for gunshot wounds.

At around 2 o'clock in the morning of March 25, 2006, the policemen arrested appellant at his residence on Calamansi St., Sampaloc Site II, Parañaque City.

Version of the Defense

Appellant claimed that on March 24, 2006, he was at home with his family. From 8 o'clock in the morning until 5 o'clock in the afternoon, he did some repairs in his house assisted by a certain "Boy." By 5 o'clock in the afternoon, Boy had left while he rested and watched television. After having dinner with his wife, children, and house helper, he went to bed. At around 2 o 'clock in the early morning of March 25, 2006, his wife was awakened by the arrival of several policemen who came to invite him to the police station. Since his conscience was clear that he did not commit any offense, he went with them.

At the police station, he saw Leonardo Carandang, from their neighborhood, who pointed to him as the one who shot Royston. He denied any knowledge of the shooting incident as he was busy doing repairs in his house. He asked that a paraffin test be conducted to show he did not shoot Royston. The police officers refused his request and detained him. The following day, he repeated his request, to no avail. During a visit at the jail, his brother told him that someone who wanted to testify to prove his innocence was threatened by the private complainants.

Galam, now a retired member of the Philippine Marine Corps who was renting one of the rooms at the ground floor of appellant's house since January 16, 2006, testified that appellant never left his house on March 24, 2006. At the time of the shooting incident, he was in active service assigned at the Second Marine Battalion in Puerto Princesa City, but was on a vacation privilege. Prior to the incident, he had already been staying at appellant's residence, together with his wife and child, for two weeks. Between his room and the gate of the house was a billiards table owned and rented out by appellant. On that day, appellant was busy repairing the roof of his house until 5 o'clock in the afternoon. He even chatted with appellant when the latter was already resting. By 7 o'clock in the evening, appellant went up to their room and instructed him to close the billiard hall and the gate at 9 o'clock that night. There were no players that day because appellant was busy with house repairs and could not attend to his billiards business. Thus, between 7and 9 o'clock that night, he was alone playing billiards. At 9 o'clock in the evening, he went to his room to take a bath. All the time he was playing billiards, he never saw appellant come down from his room or leave the house. It was impossible for anyone to come down from the second floor or go out through the gate without being noticed. It was likewise impossible for anyone to have jumped out the high second floor window. In the early morning of March 25, 2 006, Galam was awakened by knocking on the gate. He peeped through his jalousie window and saw appellant's wife go down the stairs to open the gate., He saw appellant resist when the policemen invited him to go with them to the police station to explain something. He later learned from appellant's wife that appellant was a suspect in a "patayan" (killing) in Sampaloc. Now residing at Quirino Province, Galam has also learned from his brother that appellant was put to jail.

Ruling of the RTC

The RTC convicted appellant of the following crimes: (a) murder for the killing of Royston; (b) frustrated murder for the mortal gunshot wound inflicted on Marife; and (c) two counts of attempted murder for the gunshot wounds inflicted on Michael and Estrellita. On the charge of frustrated murder for the shooting of Estrellita, the trial court said that while she was able to present a medical certificate, there was no evidence of the nature and extent of her injuries. It was also held that the killing was attended by treachery because, as narrated by eyewitnesses, the attack was sudden and unexpected, giving the victims no opportunity to defend themselves.

The RTC did not give any weight to the appellant's defense of denial. The prosecution witnesses' positive, direct, categorical, and straightforward1 declarations on the witness stand, that they actually saw appellant shoot Royston and the other victims, was also supported by documentary evidence. As to appellant's testimony that he just stayed in his house that day, the trial court found it self-serving and not duly corroborated. It also found not credible the testimony of his witness, Galam, considering that appellant himself had never mentioned Galam's presence in his house. Galam's explanation for not immediately telling the police that appellant was in his house during the time of the incident was likewise doubtful.

The dispositive portion of the RTC Joint Decision reads:
WHEREFORE, finding the evidence of the prosecution sufficient to prove the guilt of accused Diego Verallo y Villegas, BEYOND REASONABLE DOUBT, for the crimes of murder of Royston Muncal Carandang; frustrated murder committed against Marife Leonardo, and two (2) counts of attempted murder committed against Estrellita Aguila Carandang and Michael Ian Tula, respectively, the court imposes on him the following penalties:
  1. In criminal case no. 06-0438, the court hereby sentences him to suffer the penalty of reclusion perpetua which carries with it the accessory penalties of civil interdiction for life and that of perpetual absolute disqualification which he shall suffer even though pardoned unless the same shall have been expressly remitted. Accused is also ordered to pay the heirs of the victim the sum of Three Hundred Twenty One Thousand Five Hundred (Php321,500.00) Pesos, as actual damages; Fifty Thousand (Php50,000.00) Pesos, as civil indemnity ex delicto; Forty Thousand (Php40,000.00) Pesos, as moral damages; and Twenty Thousand (Php20,000.00) Pesos, as exemplary damages;
  2. In criminal case no. 06-0439, the court hereby sentences him to suffer the indeterminate penalty of imprisonment of Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to Eight (8) years and One (1) day of prision mayor, as maximum, which carries with it accessory penalties of civil interdiction and that of temporary absolute disqualification and perpetual special disqualification from the right of suffrage;
  3. In criminal case no. 06-0440 the court hereby sentences him to suffer the indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, which carries with it the accessory penalties of civil interdiction during the period of sentence and perpetual absolute disqualification which he shall suffer even though pardoned unless the same shall have been expressly remitted therein. Accused is also ordered to indemnify private complainant the sum of One Hundred Thousand Five Hundred (Php100,500.00) Pesos; and
  4. In criminal case no. 06-0441 the court hereby sentences him to suffer the indeterminate penalty of imprisonment of Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to Eight (8) years and One (1) day of prision mayor, as maximum which carries with it accessory penalties of civil interdiction and that of temporary absolute disqualification and perpetual special disqualification from the right of suffrage. Accused is also ordered to indemnify private complainant the sum of Thirteen Thousand (Php13,000.00) Pesos.
The City Jail Warden of Parañaque City is hereby ordered to transfer said accused to the National Penitentiary in Muntinlupa City, immediately upon receipt of this Decision.

As regards accused Dennis Catolico, Frankie Lipata y Dula, and John Doe, let this case remain in archive. Let a warrant of arrest be issued anew against them.

SO ORDERED.[8]
Ruling of the CA

On appeal, the CA affirmed the conviction of appellant for murder, frustrated murder, and two counts of attempted murder. It cited the circumstances of the shooting showing appellant's intent to kill. He aimed his gun directly at the victims and did not just intend to frighten the people in front of the store. Further, it was held that the acts committed by appellant were attended by treachery, the attack being so sudden that it gave the victims no opportunity to defend themselves.

The defense of denial was likewise rejected by the CA. It held that the testimonies of prosecution witnesses Marlon, Rosita, George, and; Michael were consistent in pointing to him as the one who shot Royston and the other victims. These eyewitness accounts established that appellant suddenly appeared from behind Royston and fired three successive shots at the latter and followed by two shots. On the other hand, Galam's testimony was deemed an afterthought, being merely concocted to support appellant's alibi. The RTC correctly disregarded the witness' testimony.

However, the appellate court modified the award of damages, thus:
WHEREFORE the Joint Decision dated June 29, 2015 of the Regional Trial Court of Parañaque City, Branch 195 in Crim. Case Nos. 06-0438, 06-0439, 06-0440 and 06-0441 is AFFIRMED with the following MODIFICATIONS with respect to the damages awarded, to wit:
  1. In Criminal Case No. 06-0438, accused-appellant Verallo is ordered to pay the heirs of Royston Carandang Php321,500.00 as actual damages, Php100,000.00 as civil indemnity, Php 100,000.00 as moral damages, and Php100,000.00 as exemplary damages;
  2. In Criminal Case No. 06-0439, accused-appellant Verallo is ordered to pay Estrellita Aguila Carandang Php50,000.00 as moral damages, and Php50,000.00 as exemplary damages;
  3. In Criminal Case No. 06-0440, accused-appellant Verallo is ordered to pay Marife Carandang Php105,500.00 as actual damages, Php75,000.00 as moral damages, and Php75,000.00 as exemplary damages; and
  4. In Criminal Case No. 06-0441, accused-appellant Verallo is ordered to pay Michael Ian Tula Php13,000.00 as actual damages, Php50,000.00 as moral damages, and Php50,000.00 as exemplary damages.

An interest at the rate of six percent (6%) per annum is likewise imposed on all the damages awarded, to earn from the date of finality of this judgment until fully paid, in line with prevailing jurisprudence.

SO ORDERED.[9]
ISSUES


The issues presented for resolution are: 1) Whether appellant was correctly convicted of murder, frustrated murder and attempted murder; 2) whether treachery attended the killing of Royston; and 3) whether appellant was positively identified as the one who shot Estrellita, Marife and Michael.

Appellant's Arguments

Appellant assails the trial and appellate courts for convicting him of murder despite the discrepancy between the eyewitness account of Michael and the testimony of Dr. Nulud. Michael said that Royston was hit on the left shoulder, center chest, and right lower chest. Dr. Nulud's medico-legal report showed that Royston was shot from behind; all of the entry wounds were found on his back.

On positive identification, appellant points out that he was not singled out by the eyewitnesses as the one who shot Michael, Marife, and Estrellita. Rosita ascribed the indiscriminate firing to the "group of Verallo" while George pointed to both appellant and Dennis as the ones who fired the shots. In the absence of conspiracy, each of the accused in this case should only be held liable for his own acts, the corresponding damage, and the consequences. Since the prosecution failed to ascribe the shooting of either Michael, Marife, and Estrellita specifically to appellant, the latter should not be held liable for the crimes of frustrated and attempted murder.

As to the qualifying circumstance of treachery, appellant contends that the prosecution failed to prove that he had deliberately chosen the particular mode of attack he employed. Hence, appellant should only be held liable for homicide and frustrated homicide.

With respect to the gunshot wounds sustained by Michael and Estrellita, appellant avers that these were not mortal wounds. Michael only sustained two wounds at the backside of his left knee - an entry wound and an exit wound; thus, it cannot be said that appellant shot Michael with intent to kill. The same can be deduced from the gunshot wound sustained by Estrellita. While she testified that she was hit in the lower back, no evidence was presented to prove that the nature of the injuries indicated an intent to kill. Without intent to kill, the alleged act of shooting cannot be considered attempted murder, but only physical injuries.

Solicitor General's Arguments

The State, represented by the Solicitor General, asserts that all the elements of murder are present in this case. The killing of Royston was attended by treachery. Royston was just texting on his cellphone, while seated in front of the store, when appellant approached and suddenly shot him several times with a short firearm. The swift and unexpected attack did not afford the unsuspecting victim any opportunity to defend himself.

On the alleged inconsistency between Michael's testimony and Dr. Nulud's medico-legal report and court testimony, it is emphasized that Michael's testimony actually supports the statement of Dr. Nulud. What Michael saw, in fact, were the exit wounds on the left shoulder, center chest, and lower right chest. Regardless of how Michael's recollection of the shooting incident is viewed, the fact remains that Michael positively identified appellant as the gunman, which is of prime importance. Even assuming there is such inconsistency, there are other eyewitnesses to the shooting of Royston whose credibility remains unchallenged.

The Solicitor General also concurred with the RTC and the CA that the shooting was done with intent to kill. This can be inferred from the fact that appellant used a firearm, a lethal weapon, to indiscriminately fire upon the victims. Such intent to kill was manifest when appellant successively shot Royston at close range, and then continued to indiscriminately fire at, Marife, Michael, and Estrellita. Fortunately, they managed to find safety inside Rosita's house despite the gunshot wounds they sustained. If the intention was merely to scare the group seated in front of the store, appellant could have just fired his gun into the air or aimed it away from the people nearby. Without any doubt, the appellant committed murder in its various stages, not homicide.

On the matter of positive identification, the Solicitor General argues that in criminal cases, the doctrine that evaluation of the credibility of witnesses is addressed to the sound discretion of the trial judge is settled. Having the unique opportunity to observe the witnesses on the stand and to more closely ascertain if they are telling the truth or not, the judge's conclusions deserve much weight and respect.

OUR RULING

We uphold the findings of the RTC, which were affirmed by the CA, that appellant, using a short firearm, shot Royston at close range three or five times and fired at Marife and Michael. Thereafter, together with his three companions, appellant indiscriminately fired at the group in front of the store, hitting Estrellita. Appellant was positively identified by no less than four prosecution witnesses to the incident.

Appellant liable for the murder
of Royston Carandang


To hold the accused liable for murder, the prosecution must prove lat: (1) a person was killed; (2 ) the accused killed him; (3) the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the Revised Penal Code; and (4) the killing is neither parricide nor infanticide.[11] The prosecution established beyond reasonable doubt all these elements in the present case.

Marlon was just two arms-length away from appellant when he saw the latter shoot Royston with a super .38-caliber gun. He heard more than five shots fired by appellant.[12] He had known appellant for more than five years already, as he would always see him and join him in a drinking spree at appellant's house.[13] After helping bring the victims to the hospital, he reported the incident to the police authorities and accompanied them in arresting appellant at his residence.[14]

Michael, who was seated beside Royston, saw appellant fire at Royston, the first shot hitting his left shoulder, the second shot in the center chest, and the third shot in the right lower chest.[15] As he ran for cover, appellant pointed his gun at him and hit him on his left knee. Shocked, Michael managed to run inside the store.[16] While inside, he peeped through the window and saw the assailants still firing their guns. He saw appellant shoot Royston two more times. Thereafter, the assailants headed towards the end of Bayabas St. acting as if nothing happened.[17] He knew appellant as he also frequented gambling places such as during wakes for the dead. However, he said he did not know appellant personally and no altercation existed between them.[18]

George testified that the victims were his neighbors and friends. He knew appellant whom he often saw at Sucat whenever he drove his passenger jeepney (namamasada). Appellant was among those in charge of dispatchers. He knew Dennis who is also from Bayabas Street. At the time of the incident, he was playing video games at the garage of Royston's house in front of the sari-sari store. He saw appellant draw his gun and fire three successive shots at Royston, hitting the latter's upper left chest and stomach. Thereafter, he saw appellant and Dennis fire shots at those in front of the store, hitting Marife in the stomach and right foot, Michael in his left knee, and Estrellita in her lower middle back. While the shooting was going on, he hid behind the video karera, about five arms-length away. The assailants then walked down Bayabas Street as if nothing happened. George brought Royston to the hospital.[19] On cross-examination, George said appellant was just two-arms-length from Royston when appellant first shot the latter. While hiding behind the video karera, he saw Royston fall down after he was shot. Royston even knelt down begging appellant to stop but appellant continued to shoot. Marife was the next one shot but George was not sure who shot her because appellant and Dennis were firing their guns at the same time. Michael and Estrellita were also hit during the shooting.[20]

Rosita testified that she knew appellant and his two co-accused (Dennis and Frankie) having been a resident of Bayabas St. for 21 years. She was about one and a half (1 ½) meters away from Royston and more than three (3) meters away from appellant when she saw the latter fire three successive shots that felled Royston. All the four accused were shooting indiscriminately and the people around were running away. After the shooting, the four assailants just walked nonchalantly towards the end of Bayabas Street as if nothing happened.[21] On cross- examination, she clarified that after appellant had shot Royston, he pointed his gun at Marife and shot her, hitting the lower portion of her navel. Thereafter, appellant started firing indiscriminately and hit Marife in the knee. She also saw appellant shoot Michael as the latter was about to go inside her house. However, she was not sure who fired at her sister Estrellita. She did not know of any misunderstanding or altercation between appellant and her family.[22]

The trial judge gave full faith and credence to the above testimonies. His findings were affirmed by the appellate court. As a general rule, factual findings of trial courts affirmed by the Court of Appeals are binding and conclusive upon the Supreme Court.[23]

We find no sufficient justification here to depart from this time-honored rule. As we emphatically declared in People v. Hillado[24]:
With regard to the issue of credibility of witnesses, the Court has time and again pointed out that appellate courts will not disturb the findings of the trial court unless it has plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case. This is so because the trial judge heard the witnesses testify and had the opportunity to observe their demeanor and manner of testifying. As this Court has reiterated often enough, the matter of assigning values to declarations at the witness stand is best and most competently performed or carried out by a trial judge who, unlike appellate magistrates, can weigh such testimony in light of the accused's behavior, demeanor, conduct and attitude at the trial. This Court has none of the advantages of the trial judge's position, relying as it does only on the cold records of the case and on the judge's discretion. Thus, in the absence of showing that the factual findings of the trial judge were reached arbitrarily or without sufficient basis, these findings are to be received with respect by, and indeed are binding on this Court.[25] (Emphasis supplied)
It has been correctly observed that the natural interest of witnesses who are relatives of the victims, more so being victims themselves, in securing the conviction of the guilty would deter them from implicating persons other than the culprits; for, otherwise, the culprits would gain
immunity.[26] Jurisprudence tells us that where there is no evidence that the witnesses of the prosecution were actuated by ill motive, it is presumed that they were not so actuated and their testimony is entitled to full faith and credit. In the present case, no imputation of improper motive on the part of the prosecution witnesses was ever made by appellant.[27]

Alibi a weak defense

Appellant's defense of alibi was correctly rejected by the RTC and the CA.

Indeed, alibi is an inherently weak defense, and it becomes weaker in the face of the positive identification made by the prosecution witnesses.[28] It is likewise well- settled that where there is nothing to indicate that a witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.[29]

Moreover, for his alibi to prosper, appellant must prove that not only was he somewhere else when the shooting incident took place, but also that it was physically impossible for him to have been at the scene of the crime. "Physical impossibility" refers to the distance between the place where the appellant was when the crime transpired and the place where it was committed, as well as the facility of access between the two places. Where there is the least chance for the accused to be present at the crime scene, the defense of alibi must fail.[30]

While appellant testified that he never left his house on March 24, 2006, he admitted during cross-examination that his house, located at Calamansi Street, Sampaloc Site, is just one kilometre away from Bayabas Street where the shooting took place; and that it would take him only about 20 minutes by car to go there.[31] On the other hand, his witness Galam failed to convince the trial and appellate courts. First, his presence in the house on that day was never mentioned by appellant in his testimony in court. Second, said witness failed to give a credible explanation as to why he did not immediately execute a sworn statement before the authorities despite having witnessed the arrest of appellant at the latter's residence in the wee hours of March 25, 2006.

Eyewitness' description of exit
wounds on Royston 's body not
fatal to prosecution's case


We find inexistent the alleged inconsistency between Michael's testimony on the gunshot wounds sustained by Royston and Dr. Nulud's statement that the entry points of the bullets were all at the back. Considerably, Michael was describing the wounds he saw on Royston's body immediately after he was fatally shot by appellant. When he testified in court, Michael used his own body to point out the location of the gunshot wounds.[32]

We find that Michael's testimony is not inconsistent with Dr. Nulud's finding that all entry wounds are at Royston's back. Since the gunshot wounds were "thru and thru," or penetrating, what Michael saw were exit wounds, as shown in the Medico-Legal Report[33] of Dr. Nulud.

The Certificate of Death[34] indicated that Royston died from "Gunshot Wounds of the trunks." Dr. Nulud, Chief Medico-Legal Officer at the Philippine National Police (PNP) Crime Laboratory, conducted a post mortem examination on the victim's cadaver. He testified that Royston sustained mortal wounds after being shot at close range, viz.:
Q
Based on your examination, Mr. Witness, what were your initial findings on his body?
A
The victim sustained 5 gunshot wounds all of them are thru and thru gunshot wounds all located at the back or posterior portion of the body.
Q
When you say back posterior portion of the body, what are you referring to exactly? Sa likod po.
A
Now Mr. Witness you testified that all these 5 wounds are all thru and thru gunshot wounds? Yes, ma'am.
Q
And between these 5 gunshot wounds which do you think upon your analysis and initial findings is the most fatal wound?
A
Don po sa gunshot wound number 1 lacerated the upper lobe of the left lung; don naman po sa number 4 lacerated the diaphragm, the liver and the superior vena cava; while the gunshot wound number 3 lacerated the left lower lobe of the left lung and number 5 the jejunum, yung pinaka fatal po sa lahat yong number 4.
xxxx
CROSS-EXAMINATION BY ATTY. TOLENTINO
xxxx
Q
From this situation doctor, from the entry wound, the exit wound, the direction of the bullet, the size of the entry wound, what would be the position of the assailant relative to the victim?
A
He is facing the back of the victim, sir.
Q
And how far from your own expert opinion was the assailant?
A
Due to the absence of the indication that would approximate the distance of the assailant to the victim, like tattooing and since he is probably wearing a T-shirt that time, at least 2 ft., sir.[35]
Treachery

The RTC and the CA correctly appreciated the qualifying circumstance of treachery in the killing of Royston and the shooting of Marife and Estrellita.

Paragraph 16, Article 14 of the Revised Penal Code (RPC) defines treachery as the direct employment of means, methods or forms in the execution of a crime against persons which tend directly and specially to insure its execution, without risk to the offender arising from the defense which the offended party might make. The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected way, affording the hapless, unarmed, and unsuspecting victim no chance to resist or escape. In order for treachery to be properly appreciated, two elements must be present: (1) at the time of the attack, the victim was not in a position to defend himself; and (2) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him.[36] An unexpected and sudden attack which renders the victim unable and unprepared to put up a defense is the essence of treachery.[37]

Treachery was proven by the prosecution. This qualified the killing to murder.

Royston, together with his relatives and neighbors, was just sitting and chatting in front of his aunt's sari-sari store when appellant and his co-accused arrived, all carrying firearms. At the precise moment when Royston was texting on his cellphone, appellant suddenly drew his gun and shot him at close range. Thereafter, appellant and his companions started firing indiscriminately at the people without warning and without the slightest provocation from the unarmed victims. As swiftly as the assailants attacked the group in front of the store, they quickly left and casually walked towards the end of the street.

The assault on Royston, in particular, was a complete surprise as he was unaware that he would be fatally shot while in the company of relatives and neighbors who had gathered in front of his aunt's store. There is treachery when the attack against an unarmed victim is so sudden that he had clearly no inkling of what the assailant was about to do.[38] Dr. Nulud's testimony, that all entry wounds were found at the victim's back, indicated that Royston was shot from behind. After he was felled by the first three bullets from appellant's gun, Royston even pleaded for a chance to survive when he begged appellant to stop but the latter fired at him again.

Appellant liable for frustrated
murder for inflicting mortal
wounds on Marife Leonardo


Rosita's daughter Marife, one of the victims, is a 33-year old mental retardate who cannot speak. Dr. Principe, a surgeon at the Parañaque City Medical Center, testified that he operated on Marife who sustained a gunshot wound just below her navel. He described the nature and extent of her injuries, as follows:
Q
And when you examined the patient, what was your initial findings?
A
On initial examination, the abdomen of the patient was very painful or very tender on examination, there were two gunshot wounds on the area of the abdomen below the umbilicus and another one on the left iliac area.
x x x x
Q
When you had that initial findings and initial examination on the patient, what did you do?
A
First we tried to stabilize the patient and prepare her for surgery and when she was already stable, we did the operation.
Q
And what kind of operation did you conduct on her?
A
We did the midline incision from the epigastric area hanggang dito sa may ibaba ng pusod and we explored the abdomen, we find multiple perforations or butas sa ano sa small intestine niya especially yung portion ng jejunum.
COURT:
Q
Doctor, ano sa tagalog and jejunum?
A
Small intestine ito sa tagalong maliit na bituka which is about 10ft. ang length nito and we usually subdivide it, first two ft. that is the duodenum then the remaining you divide it into two yon ang jejunum then ileum, so itong tinamaan na ito parang middle part ng small intestine.
xxxx
A
So based on the findings, what we did was, since there are multiple holes, we cannot repair the portion of the intestine that was affected has to be cut the normal part joined together.
PROSC. ROBLES:
Q
Mr. Witness, would you say that the multiple holes you found in the intestine of the patient was caused by the gunshot wounds?
A
Yes, Your Honor.
COURT:
Q
How long was the portion of the small intestine that you cut?
A
About 2 ft., Your Honor.
Q
And that 2 ft. was full of holes?
A
Yes, Your Honor.
PROS. ROBLES
x x x x
Q
Mr. Witness, without your medical assistance and the surgery that you conducted on the patient, could that cause her death?
A
It will definitely cause her death because it can cause bowel spillage inside the peritoneum, can cause infection and bleeding of the perforated intestines can cause hemorrhagic shock."[39] (Emphasis supplied)
A felony is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.[40] In this case, appellant performed all the acts of execution which could have resulted in the death of Marife; but because of prompt medical intervention, a cause independent of appellant's will, she survived. Thus, the RTC, as sustained by the CA, correctly ruled that appellant is guilty of frustrated murder for the gunshot wounds inflicted on Marife.

Treachery likewise attended the wounding of Marife because the attack was so sudden and the said victim was defenseless. Her mental condition further indicates that she could not have immediately sensed the impending danger to her life when appellant aimed the gun at her, hitting her in the stomach.

Appellant liable for
attempted murder for
gunshot wound inflicted on
Estrellita Carandang


While Estrellita presented a medical certificate stating that she sustained a gunshot wound in her lower middle back, or the buttocks area, there were no medical findings on the nature and possible complications of her injury. The doctrinal rule is that where the wound inflicted on the victim is not life-threatening, the accused, not having performed all the acts of execution that would have brought about death, the crime committed is only attempted murder.[41]

Treachery was also present in the wounding of Estrellita, who was hit during the simultaneous firing of guns by appellant and his companions in front of the store, after appellant had shot Royston and Marife. Rosita testified that Estrellita was not able to run because she went to the fallen Royston and held him.[42] The CA thus correctly affirmed the RTC ruling that appellant is liable for attempted murder in the wounding of Estrellita and not frustrated murder as charged in the information.

Appellant contends that since Estrellita was shot during the simultaneous firing of guns by all the assailants, each should be held liable only for wounds each had inflicted on her. Such argument deserves scant consideration.

To establish conspiracy, it is not essential that there be proof of previous agreement to commit a crime, it being sufficient that the malefactors shall have acted in concert pursuant to the same objective.[43] In such a case, the act of one becomes the act of all and each of the accused will thereby be deemed equally guilty of the crime committed.[44]

Conspiracy was alleged in the informations (Crim. Case Nos. 06-0438, 06-0439, and 06-0440) and sufficiently proven by the prosecution. Thus, it does not matter who among the accused had actually shot Estrellita.

It was established during trial that appellant arrived suddenly with his co-accused, each armed with a gun. He was the first one to shoot at Royston, then at Marife. Thereafter, all of them randomly fired their guns at the people in front of the store. They left the crime scene together,' walking casually towards the end of the road. There is no evidence that anyone among them prevented the others from shooting Royston and the other victims. The acts of appellant and his co-accused before, during, and after the commission of the crime indicated a joint purpose and design, concerted action, and community of interest.[45]

Appellant liable for attempted
homicide for gunshot wound
inflicted on Michael Ian Tula


The other victim, Michael, pointed to appellant as the one who shot him. His testimony was corroborated by George and Rosita who both saw appellant fire at Michael when the latter ran towards the house. Dr. Grajeda, who attended to the injuries of Michael at the hospital, testified that Michael sustained two (2) wounds in the posterior aspect or the back side of the left knee, caused by a single gunshot.[46] This medical finding is consistent with the testimonies of Michael, George, and Rosita that appellant fired at Michael only once, hitting him in the knee. Dr. Grajeda gave him prophylaxis and antibiotics and cleaned the wound. Michael stayed in the hospital for one day.

Although the wounding of Michael is also attended by treachery, the attack being so sudden and the victim defenseless, it cannot be considered an attempted stage of murder since the information in Criminal Case No. 06-0441 failed to allege treachery. While abuse of superior strength was alleged, it was not at all proven in this case.

Abuse of superior strength is present whenever there is a notorious inequality of forces between the victim and the aggressor that is plainly and obviously advantageous to the latter and purposely selected or taken advantage of to facilitate the commission of the crime.[47] Evidence must show that the assailants consciously sought the advantage, or that they had the deliberate intent to use this advantage.[48] To take advantage of superior strength means to purposely use force excessively out of proportion to the means of defense available to the person attacked. The appreciation of this aggravating circumstance depends on the age, size, and strength of the parties.[49] Mere superiority in numbers does not indicate the presence of this circumstance.[50]

In this case, there is no evidence of the relative age, size, and strength of the assailants and their victims, or that they had consciously sought the advantage of superiority in numbers. In fact, the evidence disclosed that while appellant had three other companions who were also armed, only appellant aimed his gun towards Michael and shot him once. In this light, appellant should be held liable for attempted homicide only for the gunshot wound inflicted on Michael.

Intent to Kill

Appellant argues that since the gunshot wounds sustained by Michael and Estrellita were not mortal, intent to kill was not proven.

We disagree.

The principal and essential element of attempted or frustrated homicide or murder is the assailant's intent to take the life of the person attacked. Such intent must be proved clearly and convincingly, so as to exclude reasonable doubt thereof.[51] Intent to kill is only presumed if the victim dies as a result of a deliberate act of the malefactors.[52] If there is no intent to kill on the part of the offender, he or she is liable only for physical injuries.[53]

Evidence to prove intent to kill in crimes against persons may consist, inter alia, of the means used by the malefactors; the nature, location, and number of wounds sustained by the victim; the conduct of the malefactors before, at the time of or immediately after the killing of the victim; the circumstances under which the crime was committed; and the motive of the accused.[54]

In this case, after Michael had witnessed the killing of Royston he ran for cover but then he saw appellant aiming his gun towards him. Appellant fired his gun and hit Michael in his left knee. While Michael's wound is not mortal, this does not disprove intent to kill on the part of appellant. Michael was already running away and yet appellant still shot him. Appellant and his companions then fired indiscriminately at everyone in front of the store, aware of the possibility that their lethal weapons (guns) could inflict fatal wounds upon anyone of these people. It was during this time that Estrellita was hit, fortunately just in her lower back, and not at the vital organs of her body.

Hence, the CA correctly ruled that intent to kill was evident from the acts of appellant and his companions.

Penalties and Civil Liabilities

The penalty prescribed by law for the crime of murder is reclusion perpetua to death.[55]

By applying Art. 63 (2)[56] of the RPC, the lesser of the two indivisible penalties, i.e., reclusion perpetua, shall be imposed upon the appellant in view of the absence of any mitigating or aggravating circumstance. Hence, appellant has been properly sentenced to suffer the penalty of reclusion perpetua for the murder of Royston in Criminal Case No. 06-0438. The Indeterminate Sentence Law does not apply, inter alia, to persons convicted of offenses punished with death penalty or life imprisonment, including reclusion perpetua.[57]

The penalty for frustrated murder is reclusion temporal, which must be imposed in its medium period, considering that there are neither aggravating nor mitigating circumstance. Applying the Indeterminate Sentence Law, appellant should be sentenced to suffer the penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.[58] The RTC, thus, imposed the correct penalty on appellant for inflicting a mortal gunshot wound on Marife in Criminal Case No. 06-0440.

For the crime of attempted murder, the penalty shall be prision mayor, since Article 51 of the RPC states that a penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principals in an attempt to commit a felony. Applying the indeterminate Sentence Law, and absent any mitigating or aggravating circumstance in this case, the maximum of the sentence should be within the range of prision mayor in its medium term, which has a duration of eight (8) years and one (1) day to ten (10) years; and that the minimum should be within the range of prision correccional, which has a duration of six (6) months and one (1) day to six (6) years. Hence, we find proper the penalty imposed by the RTC on appellant for inflicting a gunshot wound on Estrellita in Criminal Case No. 06-0439.

Art. 249 of the RPC provides the penalty of reclusion temporal for the crime of homicide. Attempted homicide is punishable by prision correccional. Applying the Indeterminate Sentence Law, the minimum penalty to be meted out on the appellant should be anywhere within the range of one (1) month and one (1) day to six (6) months of arresto mayor, and the maximum should be within the range of six (6) months and one (1) day to six (6) years of prision correccional. Considering that no aggravating or mitigating circumstance attended the commission of the crime, we hereby sentence appellant, for attempted homicide committed against Michael, to an indeterminate prison term of two (2) months and one (1) day of arresto mayor as minimum; to two (2) years, four (4) months and one (1) day of prision correccional medium as maximum in Criminal Case No. 06-0441.

The CA modified the damages awarded by the RTC. However, we find that these modifications are still not in accord with recent jurisprudence.

In People v. Jugueta[59] the Court has ruled that in the case of murder where the appropriate penalty is reclusion perpetua, the following amounts shall be awarded to the heirs of the victim: P75,000.00 for moral damages, P75,000.00 for exemplary damages, and P75,000.00 for civil indemnity as the essential civil liabilities, in addition to others as the records of each case will substantiate. Hence, we impose herein the same amounts for such items of damages to the heirs of Royston Carandang. We also sustain the award of actual damages for the burial and funeral expenses, which were covered by receipts, in the total amount of P321,500.00.

In the case of frustrated murder, Marife Leonardo is entitled to P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P50,000.00 as exemplary damages. Her medical and hospitalization expenses covered by receipts amounted to only P20,500.00, which the RTC granted by way of actual damages. However, the amount spent for surgery (P80,000.00) which was not covered by receipts, was additionally awarded by the RTC explaining that it was a reasonable expense that could have been incurred for such an operation. In lieu of the aforesaid amounts, Marife should be awarded P25,000.00 as temperate damages for her hospitalization and related expenses, which is in accord with our pronouncement in Jugueta.[60]

The attempted murder of Estrellita Carandang entitles her to the following: P25,000.00 as civil indemnity, P25,000.00 as moral damages, and P25,000.00 as exemplary damages.

In the case of attempted homicide, Michael Ian Tula is entitled to P20,000.00 as civil indemnity and P20,000.00 as moral damages.

In line with relevant jurisprudence, interest of six percent (6%) per annum shall be charged on all the items of civil liability imposed herein, computed from the date of the finality of this decision until fully paid.[61]

WHEREFORE, the appeal is DISMISSED. The June 29, 2015 Joint Decision of the Regional Trial Court of Parañaque City, Branch 195, as affirmed by the January 11, 2007 Decision of the Court of Appeals in CA-G.R. CR HC No. 07597, is hereby AFFIRMED with MODIFICATIONS, as follows;

1. In Criminal Case No. 06-0438, finding appellant Diego V. Verallo GUILTY beyond reasonable doubt of Murder for the fatal shooting of Royston Carandang and is hereby sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay the heirs of the said victim the amounts of P321,500.00 as actual damages, P75,000.00 as civil indemnity, P75,000.00 for moral damages, and P75,000.00 for exemplary damages.

2. In Criminal Case No. 06-0439, finding appellant Diego V. Verallo GUILTY beyond reasonable doubt of Attempted Murder and is hereby sentenced to an indeterminate prison term of Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to Eight (8) years and One (1) day of prision mayor, as maximum. He is further ordered to pay Estrellita A. Carandang the following sums: P25,000.00 as civil indemnity, P25,000.00 as moral damages, and P25,000.00 as exemplary damages.

3. In Criminal Case No. 06-0440, finding appellant Diego V. Verallo GUILTY beyond reasonable doubt of Frustrated Murder and is hereby sentenced to an indeterminate prison term of Eight (8) Years and One (1) day of prision mayor, as minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day of reclusion temporal, as maximum. He is further ordered to pay Marife Leonardo the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P50,000.00 as exemplary damages, and P25,000.00 as temperate damages.

4. In Criminal Case No. 06-0441, finding appellant Diego V. Verallo GUILTY beyond reasonable doubt of Attempted Homicide and is hereby sentenced to an indeterminate prison term of Two (2) Months and One (1) Day of arresto mayor as minimum, to Two (2) Years, Four (4) Months and One (1) Day of prision correccional medium as maximum. He is further ordered to pay Michael Ian Tula the sums of P20,000.00 as civil indemnity, and P20,000.00 as moral damages.

In addition, interest at the rate of six percent (6%) per annum shall be imposed on all monetary awards from the date of finality of this decision until folly paid. (Peralta, J., on official leaveLeonen, J.Acting Chairperson)

SO ORDERED.

[1] Rollo, pp. 2-18; penned by Associate Justice Henri Jean Paul B. Inting, and concurred in by Associate Justices Marlene B. Gonzales-Sison and Ramon A. Cruz.

[2] CA rollo, pp. 86-106; penned by Judge Aida Estrella Macapagal.

[3] Id. at 25-27.

[4] Records, p. 184.

[5] Id. at 1053.

[6] Id. at 1146.

[7] Id. at 1241.

[8] CA rollo, pp. 105-106.

[9] Id. at 269-270.

[10] Art. 248. Murder. — Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death if committed with any of the following circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity [.] x x x x

[11] People v. Zapuiz, 704 Phil, 511, 520 (2013).

[12] TSN, March 12, 2007, pp. 15-17.

[13] Id. at 21.

[14] Id. at 25-30.

[15] TSN, May 9, 2007, pp. 17-19.

[16] Id. at 23-24.

[17] Id. at 32-34.

[18] Id. at 65-67.

[19] TSN, September 26, 2007, pp. 9-18 and 20-31.

[20] TSN, October 24, 2007, pp. 25-30.

[21] TSN, November 12, 2008, pp. 8-10 and 15-20.

[22] TSN, November 4, 2009, pp. 22-27 and 29-31.

[23] People v. Sabalones, et al., 356 Phil. 255, 260 (1998).

[24] 367 Phil. 29 (1999).

[25] Id. at 41-42 (citations omitted).

[26] People v. Libre, 792 Phil. 12, 30 (2016), citing People v. Nelmida, 694 Phil. 529, 562-563 (2012).

[27] Id. at 29, citing People v. Dadao, et al., 725 Phil. 298, 310-311 (2014).

[28] People v. Zapuiz, supra note 11, at 521 (2013), citing People v. Bromo, 376 Phil. 877, 897 (1999).

[29] Id., citing Velasco v. People, 518 Phil. 780, 797 (2006).

[30] Id. at 521-522, citing People v. Anticamara, 666 Phil. 484, 507-508 (2011).

[31] TSN, December 10, 2012, pp. 18-19.

[32] TSN, May 9, 2007, p. 17.

[33] Records, p. 554.

[34] Id. at 553.

[35] TSN, March 7, 2011, pp. 6, 14-15 and 24-25.

[36] People v. Las Piñas, et al., 739 Phil. 502, 524-525 (2014), citing People v. Lagman, 685 Phil. 733, 745 (2012).

[37] People v. Libre, supra note 26, at 32.

[38] People v. Zapuiz, supra note 28, at 522, citing People v. Dollendo, et al., 679 Phil. 338,346 (2012).

[39] TSN, March 7, 2011, pp. 43-49.

[40] Article 6, Revised Penal Code.

[41] People v. Albacin, 394 Phil. 565, 585 (2000), citing People v. Tin, et al., 290 Phil. 556, 564 (1992).

[42] TSN, November 4, 2009, p. 23.

[43] People v. Sola, et al., G.R. No. 203121, November 29, 2017, citing People v. CA, et al., 755 Phil. 80, 114 (2015).

[44] Id., citing Buebos, et al., v. People, 573 Phil. 347, 360 (2008).

[45] See People v. Esponilla, 452 Phil. 517, 537 (2003).

[46] TSN, September 15, 2010, pp. 8-10.

[47] Valenzuela v. People, 612 Phil. 907, 917 (2009), citing People v. Daquipil, et al., 310 Phil. 327, 348 (1995).

[48] Id., citing People v. Casingal, et al., 312 Phil. 945, 956 (1995); People v. Escoto, et al., 313 Phil. 785, 799 (1995).

[49] Id., citing People v. Ventura, et al., 477 Phil. 458, 484 (2004); People v. Martinez, 185 Phil. 502, 507-508 (1980); People v. Cabato, 243 Phil. 262, 272 (1988); People v. Carpio, et al., 269 Phil. 112, 122 (1990); People v. Moka, et al., 213 Phil. 610, 621(1991); People v. De Leon, 378 Phil. 241, 252 (1999).

[50] Id., citing People v. Escoto, supra note 48, at 800.

[51] People v. Catbagan, 467 Phil. 1044, 1083 (2004), citing People v. Pagador, 409 Phil. 338, 351 (2001).

[52] Etino v. People, G.R. No. 206632, February 14, 2018, citing Rivera v. People, 515 Phil. 824, 832 (2006).

[53] People v. Moreno, G.R. No. 217889, March 15, 2018, citing Cirera v. People, 739 Phil. 25, 39 (2014).

[54] Mahawan v. People, 595 Phil. 397, 418 (2008), citing People v. Delim, 444 Phil. 430, 450 (2003).

[55] Art. 248, Revised Penal Code.

[56] Article 63. Rides for the application of indivisible penalties. - In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof:

x x x x

2. When there are neither mitigating nor aggravating circumstances and there is no aggravating

circumstance, the lesser penalty shall be applied.

xxxx

[57] People v. Adallom, 683 Phil. 618, 645 (2012).

[58] People v. Pinuela, 444 Phil. 640, 653 (2004).

[59] 783 Phil. 806 (2016).

[60] People v. Oandasan, Jr., 787 Phil. 139, 166 (2016); People v. Advincula, G.R. No. 218108, April 11, 2018.

[61] Id. (citation omitted).

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