THIRD DIVISION
G.R. No. 210710, July 27, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LUISITO GABORNE Y CINCO, Accused-Appellant.
D E C I S I O N
PEREZ, J.:
Before the Court is an appeal from the Decision1 of the Court of Appeals (CA) dated 29 July 2013 in CA-G.R. CR HC No. 01183, affirming the Decision2 of the Regional Trial Court (RTC), Branch 33, Calbiga, Samar which found appellant Luisito Gaborne y Cinco guilty of the crime of Murder with the use of Unlicensed Firearm, as defined in Article 248 of the Revised Penal Code (RPC) as amended by Sec. 6 of Republic Act (R.A.) No. 7659, and Frustrated Murder as defined in Article 248 in relation to Article 50 of the RPC, respectively.
Together with two others, appellant was charged with Murder with the use of Unlicensed Firearm and Frustrated Murder in the following Informations:
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That on or about the 2nd day of February 2007, at about 11:00 o'clock in the evening more or less, at Brgy. Mugdo, Hinabangan, Samar, Philippines, and within the jurisdiction of this Honorable Court, the above -named accused, conspiring, confederating, mutually helping one another, with deliberate intent to kill, and with treachery and evident premeditation, which qualify the offense into murder, did there, willfully, unlawfully, and feloniously, shot (sic) Sixto Elizan y Herrera, with the use of an unlicensed firearm a caliber [.]45 pistol, a special aggravating circumstance pursuant to RA 8294, which accused have provided themselves for the purpose, thereby hitting and inflicting upon the said Sixto Elizan y Herrera fatal gun shot wounds on the different parts of his body, which gun shot wounds caused his instantaneous death.3chanrobleslawOn arraignment, appellant entered a plea of NOT GUILTY5 for both charges. Trial on the merits ensued thereafter.Criminal Case No. CC-2007-1650
That on or about the 2nd day of February 2007, at around 11:00 o'clock in the evening more or less, at Brgy. Mugdo, Municipality of Hinabangan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, conspiring, confederating, mutually helping one another, with deliberate intent to kill, and with treachery, which qualifies the offense to murder, did, then and there, willfully, unlawfully and feloniously shot [sic] the victim, Rey Perfecto C. de Luna, with the use of a caliber [.]45 pistol, an unlicensed firearm, a special aggravating circumstance pursuant to Rep. Act No. 8294, with which the accused have provided themselves for the purpose, thereby inflicting upon the victim the following wounds, to wit:ChanRoblesVirtualawlibraryGun shot wound (R) back penetrating (R) chest, lacerating diaphragm, (R) lobe of the liver, thru and thru and greater omentum with massive hemoperitoneumthus, accused have performed all the acts of execution which should have produced the crime of murder as a consequence but which nevertheless did not produce it by reason of some cause independent of the will of the accused, that is, the timely medical treatment/intervention rendered to the victim at Saint Paul's Hospital, Tacloban City.4
Gun shot wound (R) para spinal area at L2 penetrating abdomen perforating ileum thru and thru
WHEREFORE, premises considered, the [c]ourt finds the co-accused LUISITO GABORNE y CINCO GUILTY BEYOND REASONABLE DOUBT as principal in the crimes of:
A. Murder with the Use of an Unlicensed Firearm under Art. 248 of the Revised Penal Code in Criminal Case No. CC-2007-1640 and considering the presence of one (1) aggravating circumstance without any mitigating circumstance to offset it, hereby sentences him to suffer imprisonment of RECLUSION PERPETUA; to pay the Heirs of Sixto Elisan y Herrera Php75,000.00 as civil indemnity for his death; Php50,000.00 in moral damages and Php25,000.00 in exemplary damages and to pay the costs of this suit.B. Frustrated Murder penalized under Art. 248 in relation to Art. 50 of the Revised Penal Code in Criminal Case No. CC-2007-1650 and considering the presence of one (1) aggravating circumstance without any mitigating circumstance to offset it hereby sentences him to suffer imprisonment of an indeterminate penalty ranging from ELEVEN (11) YEARS of Prision Mayor as minimum to EIGHTEEN (18) YEARS of Reclusion Temporal as maximum, to pay Perfecto de Luna Php264,866.58 as civil liability without subsidiary imprisonment in case of insolvency and to pay the costs of this suit.
The accused who underwent preventive imprisonment since February 3, 2007 shall be credited with the full time during which he was deprived of his liberty if he agreed voluntarily and in writing to abide by the same disciplinary rules imposed upon convicted prisoners otherwise he will be entitled to only four-fifths (4/5) thereof.
Because the prosecution absolutely failed to prove guilt of accused NOLI ABAYAN y LARGABO and co-accused JOSELITO BARDELAS y BACNOTAN from the instant criminal charges, they are ACQUITTED in these cases. No civil liability is assessed against them.
Because the said accused are detained, the Provincial Warden of Samar are hereby ordered to release the said accused from detention unless they are held for some-other cause or ground.24
WHEREFORE, the instant appeal is hereby DENIED. The Joint Judgment dated March 12, 2010 rendered by Branch 33, Regional Trial Court of Calbiga, Samar, 8th Judicial Region in Criminal Case Nos. [CC-] 2007-1640 and [CC-]2007-1650 is hereby AFFIRMED WITH MODIFICATION as to the award of damages, to wit:Appellant appealed the decision of the CA. The Notice of Appeal was given due course and the records were ordered elevated to this Court for review. In a Resolution27 dated 19 February 2014, this Court required the parties to submit their respective supplemental briefs. Both parties manifested that they are adopfing all the arguments contained in their respective briefs in lieu of filing supplemental briefs.28chanrobleslaw
- The award of civil indemnity in Criminal Case No. [CC-]2007-1640 is affirmed;
- The award of moral damages in the amount of Php50,000.00 in Criminal Case No. [CC-]2007-1640 is affirmed;
- The award of exemplary damages in the amount of Php25,000.00 in Criminal Case No. [CC-]2007-1640 is affirmed;
- In Criminal Case No. [CC-]2007-1650, accused-appellant is ordered to pay moral damages to the private offended party, Rey Perfecto De Luna, in the amount of Php40,000.00;
- In Criminal Case No. [CC-]2007-1650, accused appellant is likewise ordered to pay exemplary damages to the private offended party, Rey Perfecto De Luna, in the amount of Php20,000.00; and cralawlawlibrary
- Accussed-appellant is further ordered to additionally pay the private offended parties in the two criminal cases, Rey Perfecto De Luna and the heir/s of Sixto Elizan, interest on all damages at the legal rate of six percent (6%) from the date of finality of this judgment until the amounts awarded shall have been fully paid.26
ARTICLE 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 attendant circumstances:Thus, the elements of murder are: (1) that a person was killed; (2) that the accused killed him or her; (3) that the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the RPC; and (4) that the killing is not parricide or infanticide.37chanrobleslaw
- 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.
- In consideration of a price, reward or promise.
- By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.
- On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity.
- With evident premeditation.
- With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.
In this case, the hapless victims were merely drinking and singing in-front of the videoke machine when shot by the appellant. The firing was so sudden and swift that they had no opportunity to defend themselves or to retaliate. Furthermore, appellant's acts of using a gun and even going out of the videoke bar evidently show that he consciously adopted means to ensure the execution of the crime.
(1) The employment of means method, or manner of execution which will ensure the safety of the malefactor from defensive or retaliating acts on the part of the victim, no opportunity being given to the latter to defend himself or to retaliate; and(2) Deliberate or conscious adoption of such means, method, or manner of execution.39
This Court gives the highest respect to the RTC's evaluation of the testimony of the witnesses, considering its unique position in directly observing the demeanor of a witness on the stand. From its vantage point, the trial court is in the best position to determine the truthfulness of witnesses.48chanrobleslaw
Pasana's testimony: Q: Can you recall who among the five (5) went out? A: Yes, Ma'am. Q: Of the two (2) among the five (5) who went out, are these two (2) people or persons here in court right now? A: Yes, Ma'am. Q: And who are these two (2) persons you are referring to, can you point it out to the Honorable Court if they are here in [c]ourt right now? A: That person, Ma'am. Interpreter: Witness, Your Honor, is pointing to a person who earlier identified himself as Luisito Gaborne. x x x x Q: Point specifically, who among those persons? A: That person, Ma'am. Interpreter: Witness, Your Honor, is pointing to a person who identified himself earlier as Luisito Gaborne.46 De Luna's Testimony:
Q: How about the appearance of the guy whom you said holding a gun, can you recall? A: I can recall him if he is inside the court, ma'am. Q: Can you point it out to the court, the other guy whom you saw at the videoke bar? A: Yes, ma'am, if I can go with him in a short distance, I can point him. Q: Can you point him? A: (The witness stood up and approach (sic) the accused' bench and pointed to a person and when asked his name answered to (sic): Luisito Gaborne)
Q: You said that there was also another guy by the window? (the court butt-in [sic]) THE COURT: Q: Excuse me, this man who answered Luisito Gaborne was the one holding the fire arm? A: Yes, your Honor.47
Endnotes:
* Additional Member per Raffle dated 13 July 2016.
1Rollo, pp. 3-21; Penned by Associate Justice Maria Elisa Sempio Diy with Associate Justices Edgardo L. Delos Santos and Pamela Ann Abella Maxino concurring.
2 Records (Crim. Case No. CC-2007-1640), pp. 186-205; Presided by Acting Presiding Judge Yolanda U. Dagandan.
3 Records (Crim. Case No. CC-2007-1640), p. 1.
4 Records (Crim. Case No. CC-2007-1650), pp. 1 -2.
5 Records (Crim. Case No. CC-2007-1640), p.43; Records (Crim. Case No. CC-2007-1650), p. 22.
6 CA rollo, pp. 70-87.
7 Also referred to in the records as Sixto Elisan.
8 Also referred to in the records as "Mana Riting" & "Narita Gayuso."
9 TSN,21 August 2008, pp. 5-8.
10 TSN, 19 June 2008, pp. 9-11.
11 TSN, 25 September 2008, pp. 4-5.
12 TSN, 21 August 2008, pp. 8-9.
13 Id. at 10.
14 TSN, 19 June 2008, p. 34-38.
15 Id. at 16-21.
16 Id. at 22.
17 TSN, 29 January 2009, pp. 7-17 and 29-43.
18 TSN, 13 August 2009, pp. 9-11.
19 Id. at 12.
20 TSNs, 8 October 2009, p.9 and 4 June 2009, pp. 13-14.
21 Id. at 13; TSN, 8 October 2009, p. 9.
22 Id. at 14-17.
23 TSN, 13 August 2009, pp. 23 and 26.
24 Records (Crim. Case No. CC-2007-1640), pp. 204-205.
25cralawred Rollo, p. 15.
26 Id. at 19-20.
27 Id. at 28-29.
28 Id. at 30 and 40-42.
29 CA rollo, p. 29.
30Miclat, Jr. v. People, 672 Phil. 191, 203 (2013).
31People v. Velasco, 722 Phil. 243, 252 (2013).
32Rollo, p. 15.
33People v. Ereno, 383 Phil 30,41 (2000).
34People v. Rivera, 613 Phil. 660, 667 (2009).
35 Records (Crim. Case No. CC-2007-1640), p. 43.
36 Id. at 155.
37People v. Dela Cruz, 626 Phil. 631, 639 (2010).
38Cirera v. People, G.R. No. 181843, 14 July 2014, 730 SCRA 27, 47 citing Revised Penal Code Art. 14(16).
39People v. Pirame, 384 Phil. 286, 301 (2000) citing People v. Gatchalian, 360 Phil. 178, 196-197 (1998).
40Serrano v. People, 637 Phil. 319, 335 (2010).
41 TSN, 29 January 2009, p. 38.
42People v. Ballesteros, 349 Phil. 366, 374 (1998).
43Cupps v. State, 97 Northwestern Reports, 210.
44 717 Phil. 670, 680-681 (2013).
45 Records, pp. 36-37 and 96.
46 TSN, 19 June 2008, pp. 14-16.
47 TSN,21 August 2008, pp. 11-14.
48People v. Abat, GR. No. 202704, 2 April 2014, 720 SCRA 557, 564 citing People v. Banzuela, 723 Phil. 797, 814(2013).
49People v. Barde, 645 Phil. 434, 457 (2010); People v. Berdin, 462 Phil. 290, 304 (2003); People v. Francisco, 397 Phil. 973, 985 (2000).
50People v. Cajumocan, 474 Phil. 349, 358 (2004).
51 TSN, 19 June 2008, p. 16.
52 TSN, 21 August 2008, p. 12.
53 TSN, 13 August 2009, pp. 19-22. jU
54Peoplev. Pagal, 338 Phil. 946,951 (1997).
55 G.R. Nos. 105289-90,21 July 1994, 234 SCRA 325, 332.
56 GR. Nos. 108780-81, 29 April 1994, 232 SCRA 82, 96.
57 Records, p. 41.
58Celino v CA, G.R. No. 170562, 553 Phil. 178, 185 (2007) citing People v. Ladjaalam, 395 Phil. (2010).
59People v. Avecilla, 404 Phil. 476, 483 (2001).
60People v. Molina, 354 Phil. 746, 786 (1998).
61 Id. at 786-787.
62 Records, p. 41.
63People v. Jugueta, G.R. No. 202124, 5 April 2016 citing People v. Gambao, 718 Phil. 507, 531 (2013).