Loss of self-control as factor to lower penalty?

A police officer who attempted to make an arrest killed the supposed arrestees by shooting them twice each in the head. The complaint was about the use of “boga,” an improvised canon usually made of bamboo, used to make noise during New Year celebrations. The victims – mother and child – resisted arrest and, instead, waited for the barangay officials to come. During the standstill, the police officer was annoyed and triggered by the ridicule made by the mother to the police officer’s daughter. In response, he killed the mother and the son: first, one shot each in the head that caused them to fall and, second, another shot each also in the head to make sure they are dead.

The police officer is Jonel Nuezca; the victims, Sonya and Frank Gregorio.

Does “PASSION OR OBFUSCATION” apply in this situation as a mitigating circumstance?

A mitigating circumstance, under the Revised Penal Code, is any of the situations enumerated under Article 13 thereof. When such a circumstance is present, the penalty to be imposed against the accused may be lowered by the court if evidence so warrants.

One of these circumstances is passion or obfuscation.

For passion or obfuscation as a mitigating circumstance to be considered, it must be shown that (1) an unlawful act sufficient to produce passion and obfuscation was committed by the intended victim; (2) that the crime was committed within a reasonable length of time from the commission of the unlawful act that produced the obfuscation in the accused’s mind; and that (3) the passion and obfuscation arose from lawful sentiments and not from a spirit of lawlessness or revenge. (Romera vs. People, G.R No. 151978, 14 July 2004)

Going back to the facts about the crime of Jonel Nuezca, according to Police Colonel Renante Cabico, director of the Tarlac Provincial Police Office, Nuezca had gone to the Gregorios to investigate who was shooting the boga. It is not disputed that the use of the boga was the reason for the attempted arrest but there are pieces of news saying that there were prior squabbles between the two neighboring families.

Is the use of a boga an unlawful act?

It can be easily conceded that shooting boga annoys or offends the senses and is considered a nuisance to others. According to Article 694 of the Civil Code, a nuisance is any act, omission, establishment, business, condition of property, or anything else which:
  1. Injures or endangers the health or safety of others;
  2. Annoys or offends the senses;
  3. Shocks, defies or disregards decency or morality;
  4. Obstructs or interferes with the free passage of any public highway or street, or any body of water; or
  5. Hinders or impairs the use of property.
However, the term “unlawful act” technically refers to an act punishable by law. Therefore, it is better to consult the Revised Penal Code which says: “The penalty of arresto menor or a fine not exceeding P200 pesos shall be imposed upon:
  1. Any person who within any town or public place, shall discharge any firearm, rocket, firecracker, or other explosives calculated to cause alarm or danger;
  2. Any person who shall instigate or take an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility;
  3. Any person who, while wandering about at night or while engaged in any other nocturnal amusements, shall disturb the public peace; or
  4. Any person who, while intoxicated or otherwise, shall cause any disturbance or scandal in public places, provided that the circumstances of the case shall not make the provisions of Article 153 applicable." (Article 155)
A barangay, city or municipal ordinance may also consider unlawful the use of firecrackers or other explosives.

Despite the above legal bases, there are arguments saying that such an act of firing boga still cannot give rise to an impulse sufficiently powerful to naturally produce a justified diminution of a policeman’s self control to shoot two defenseless civilians. It can be recalled as well that the policeman shot the victims minutes after the firing of boga complained of. What triggered him to do the crime is the act of the mother in ridiculing his daughter, not actually the boga.

When there is passion or obfuscation, self-control is lost. This is the reason why the law considers it a mitigating circumstance. However, the above-mentioned elements must be present and the guidelines established by the Supreme Court should be followed. For example, regarding the second element of reasonable time, according to the High Court, "the act producing the obfuscation must not be far removed from the commission of the crime by a considerable length of time, during which the accused might have recovered his normal equanimity." (People v. Oloverio, G.R. No. 211159, March 18, 2015, citing People v. Valles, G.R. No. 110564, January 28, 1997)

There is no uniform rule on what constitutes "a considerable length of time." The provocation and the commission of the crime should not be so far apart that a reasonable length of time has passed during which the accused would have calmed down (reached normal equanimity) and be able to reflect on the consequences of his or her actions. What is important is that the accused has not yet "recovered his normal equanimity" when he committed the crime. (G.R. No. 211159)

Based on the video, the people involved and present in the scene tried their best to calm and lessen the tension between Nuezca and his daughter, on one hand, and, on the other hand, Sonya and her son. Before shooting the victims, Nuezca can be seen calming down, recovering his emotional calmness and balance. In fact, they were simply waiting for the barangay officials to come and detain Frank. This proves that there was almost no tension anymore that would cause Nuezca to lose self-control. He then again outraged after hearing Mrs. Gregorio and her daughter’s altercation when the latter shouted, “My father is a policeman,” and the former responding, “I don’t care.”

“P*tang ina mo, gusto mo tapusin kita ngayon?” Four bullets. Death.

The third element requires that the passion and obfuscation originate from lawful feelings. Whereas, Nuezca pulled the trigger of his gun after Mrs. Gregorio told her daughter that she does not care if he is a policeman. Such speech, no matter how insulting, cannot give rise to a lawful sentiment to kill another person.

In addition, an interview with Tasha Delos Santos, an immediate family member of the victims, said that Nuezca and his family already have a history of dispute. Passion and obfuscation must not arise from a spirit of lawlessness or revenge in order to qualify as a mitigating circumstance. It can be argued that Nuezca acted on his personal sentiments, grudges and resentful motives, using his power and authority as a police officer.

The elements to consider passion and obfuscation as a mitigating circumstance in the case of Nuezca seem to be absent. Hence, the offender cannot successfully claim that he was blinded by passional obfuscation. (DRT)