THIRD DIVISION
G.R. No. 177246, September 25, 2017
ANTONIO A. SOMBILON, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
BERSAMIN, J.:
"The test for the presence of unlawful aggression under the circumstances is whether the aggression from the victim put in real peril the life or personal safety of the person defending himself; the peril must not be an imagined or imaginary threat."1
WHEREFORE, premises considered, the Appeal is hereby DENIED and the assailed Decision of the court a quo is AFFIRMED with MODIFICATION, imposing upon the Appellant, ANTONIO SOMBILON, the indeterminate prison term of Eight (8) Years of Prision Mayor, as minimum, to Fourteen (14) Years and Eight (8) Months of Reclusion Temporal, as maximum.
SO ORDERED.4
That on or about the 18th day of November, 1997, at around 7:30 o'clock in the evening, in barangay Lanas, municipality of San Jose, province of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and shoot with a caliber .45 pistol, one GERARDO F. AMERILLA, inflicting upon the latter gunshot wounds in different parts of his body which caused his untimely death.
Contrary to law.5
WHEREFORE, premises considered, accused ANTONIO SOMBILON is found GUILTY beyond reasonable doubt of the crime of HOMICIDE. Appreciated in his favor is a mitigating circumstance of voluntary surrender and with no aggravating circumstance. He is hereby sentence[d] to suffer the penalty of Reclusion Temporal in its minimum period, which is TWELVE YEARS (12) AND ONE (1) DAY to FOURTEEN (14) YEARS AND EIGHT MONTHS. He is likewise ordered to pay actual damages in the amount of SEVENTY FIVE THOUSAND PESOS (P75,000.00) and moral damages in the amount of FIFTY THOUSAND PESOS (P50,000.00).The RTC doubted the petitioner's plea of self-defense because the gun the victim had supposedly fired at him had not been recovered. It is considered to be contrary to human experience that the petitioner should run home instead of towards his fallen victim to find out who his assailant had been if he had really acted in self-defense, he being the barangay chairman of the place. It made the following cogent observations:
SO ORDERED.28
A scrutiny of the evidences (sic) on record, it appeared that what actually transpired was that accused went to the house of Nelson Andres to confront him relative to the complaint of other residents who were not yet provided with electricity by the BAPA, the latter being the President thereof. A verbal tussle ensued. Accused fired his gun while walking back and forth of the house of Nelson Andres to scare the latter. The victim, after hearing gunshots, being a policeman, responded, and when he confronted the accused, he was shot twice.
If the victim was the one who shot the accused first, why is it that not one of the several witnesses testified that a gun was recovered at the scene of the crime. Likewise, if accused merely retaliated after he was shot once by the victim and acted in self-defense, why did he immediately run to his house and not to the fallen victim, which he claims, he did not recognize, he being the Brgy.Chairman of the place. He had to summon somebody else, to identify the man he shot and to bring him to the hospital if alive.29
Unlawful aggression is the first and primordial element of self-defense. Of the three requisites, it is the most important. Without it, the justifying circumstance cannot be successfully invoked. If there is no unlawful aggression, there is nothing to prevent or repel. Unlawful aggression refers to an attack or a threat to attack, positively showing the intent of the aggressor to cause injury. It presupposes not merely a threatening or an intimidating attitude, but an actual, sudden and unexpected attack or an imminent danger thereof, which imperils one's life or limb. Thus, when there is no peril, there is no unlawful aggression.Nonetheless, the CA concluded that the RTC erred in ignoring the provisions of the Indeterminate Sentence Law in fixing the minimum of the indeterminate sentence, and revised the penalty to imprisonment of eight years of prision mayor, as the minimum, to 14 years and eight months of reclusion temporal, as the maximum.
It now becomes very material to ascertain whether or not the Victim was the unlawful aggressor? We answer this question in the negative. It bears stressing that, aggression, to be unlawful, must be actual and imminent, such that there is a real threat of bodily harm to the person resorting to self-defense. The recorded evidence in this case would depict clearly the absence of unlawful aggression on the part of the Victim.
Curiously, the Appellant did not even bother to discuss nor elucidate in his brief filed before this Court the existence of the elements of self-defense and their proper application in the instant case to justify his act.30
THE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW WHEN IT AFFIRMED THE CONVICTION OF THE PETITIONER, CONSIDERING THAT THE DEFENSE WAS ABLE TO PROVE THAT THE PETITIONER ACTED IN SELF-DEFENSE WHEN HE SHOT THE DECEASED.The petitioner posits that he established the concurrence of the elements of self-defense; and that Amerilla's very act of aiming his gun and shooting at him without any reason clearly constituted unlawful aggression.
Unlawful aggression on the part of the victim is the primordial element of the justifying circumstance of self-defense. Without unlawful aggression, there can be no justified killing in defense of oneself. The test for the presence of unlawful aggression under the circumstances is whether the aggression from the victim put in real peril the life or personal safety of the person defending himself; the peril must not be an imagined or imaginary threat. Accordingly, the accused must establish the concurrence of three elements of unlawful aggression, namely: (a) there must be a physical or material attack or assault; (b) the attack or assault must be actual, or, at least, imminent; and (c) the attack or assault must be unlawful.The petitioner manifestly did not discharge his burden. He did not persuasively show that Amerilla had committed unlawful aggression against him as to endanger his life and limb. The petitioner's insistence that Amerilla had been the first to aim and fire his gun remained uncorroborated, Verily, the claim of unlawful aggression on the part of the victim was also weak due mainly to the failure to recover the victim's alleged gun in the place where the shooting happened during the ensuing investigation.34 Moreover, that the petitioner allegedly retaliated in his defense by firing his own gun after the victim had supposedly fired at him once was rendered improbable by his immediately running away from the scene of the shooting and fleeing towards his house instead of going towards the victim whom he professed not to have then recognized. The improbability rested on his being the incumbent barangay chairman of the place, and, as such, had the heavy responsibility of keeping the peace and maintaining order thereat. More telling was the established fact that even before Amerilla came around the petitioner had already been firing his gun in order to scare Andres. The very reason for Amerilla's going to the house of Andres was to try to pacify the troublemaking of the petitioner. The belligerent conduct of the petitioner manifested a predisposition for aggressiveness on his part instead of on the part of the victim.
Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent unlawful aggression. Actual or material unlawful aggression means an attack with physical force or with a weapon, an offensive act that positively determines the intent of the aggressor to cause the injury. Imminent unlawful aggression means an attack that is impending or at the point of happening; it must not consist in a mere threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong (like aiming a revolver at another with intent to shoot or opening a knife and making a motion as if to attack). Imminent unlawful aggression must not be a mere threatening attitude of the victim, such as pressing his right hand to his hip where a revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot. (Bold underscoring supplied for emphasis)
x x x although Article 64 of the Revised Penal Code, which has set the rules "for the application of penalties which contain three periods," requires under its first rule that the courts should impose the penalty prescribed by law in the medium period should there be neither aggravating nor mitigating circumstances, its seventh rule expressly demands that "[w]ithin the limits of each period, the courts shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater or lesser extent of the evil produced by the crime." By not specifying the justification for imposing the ceiling of the period of the imposable penalty, the fixing of the indeterminate sentence became arbitrary, or whimsical, or capricious. In the absence of the specification, the maximum of the indeterminate sentence for the petitioner should be the lowest of the medium period of reclusion temporal, which is 14 years, eight months and one day of reclusion temporal. (Bold underscoring supplied for emphasis; italicized portions are part of the original text)Accordingly, the correct indeterminate sentence to be meted on the petitioner should be eight years of prision mayor, as the minimum, to 12 years and one day of reclusion temporal, as the maximum.
Endnotes:
1People v. Nugas, G.R. No. 172606, November 23, 2011, 661 SCRA 159.
2Rollo, pp. 25-45; penned by Associate Justice Myrna Dimaranan Vidal, with the concurrence of Associate Justice Jose L. Sabio, Jr. and Associate Justice Jose C. Reyes, Jr.
3 Id. at 131-137; penned by Executive Judge B. Marco Vedasto.
4 Id. at 44-45.
5 Id. at 103.
6 TSN dated September 8, 1998, pp. 5-8.
7 Sometimes spelled as "Jemwel" or "Jimwel" in the transcript, TSN dated September 8, 1998, pp. 6-7.
8 Testimony of Jemuel Agustin, TSN dated September 8, 1998, pp. 3-5.
9 Testimony of Nelson Andres, TSN dated September 8, 1998, p. 8.
10 Id. at 8-11.
11 Id. at 18-20.
12 Testimony of Jemuel Agustin, TSN dated September 8, 1998, pp. 15-17.
13 Testimony of Jemuel Agustin, TSN dated October 15, 1998, p. 18.
14 Testimony of Jemuel Agustin, TSN dated September 8, 1998, pp. 7-8.
15 TSN dated March 9, 1999, p. 8.
16 Testimony of PO2 Jose Sungcang, Jr., TSN dated March 8, 1999, p. 7.
17 Post-Mortem Examination Report, Exhibit Folder for the Prosecution, p. 144.
18 Testimony of Dr. Ederlina Aguirre, TSN dated July 19, 1999, p. 11.
19 Testimony of Marlon Alam, TSN dated July 23, 1998, pp. 8-14.
20 Testimony of Antonio Sombilon, TSN dated December 19, 2000, pp. 13-19.
21 Id. at 19-21.
22 Id. at 25.
23 Id. at 28.
24 Id. at 29.
25 Id. at 30-31.
26 See testimony of Bienvenida Alam, TSN dated October 21, 1999, pp. 3-4; testimony of Roque Ignacio, TSN dated July 25, 2000, pp. 11-12; Rogelio Venus testified, however, that after he heard many shots, Sombilon came running towards his house and went up straight to the second floor (TSN dated December 18, 2000, p. 9).
27Rollo, pp. 103-109.
28 Id. at 109.
29 Id. at 136-137.
30 Id. at 40-41.
31People v. Tanduyan, G. R. No. 108784, September 13, 1994, 236 SCRA 433, 439; People v. Quiño, G.R. No. 105580, May 17, 1994, 232 SCRA 400, 403; People v. Molina, G.R. No. 59436, August 28, 1992, 213 SCRA 52, 64; People v. Dorico, G.R. No. L-31568, November 29, 1973, 54 SCRA 172, 184.
32Razon v. People, G.R. No. 158053, June 21, 2007, 525 SCRA 284, 297; Garong v. People, G.R. No. 148971, November 29, 2006, 508 SCRA 446, 456.
33 Supra, note 1, at 167-168.
34 The petitioner sought to explain the non-recovery of the firearm by assuming that the investigation of the shooting incident by the police authorities could not have been fair towards him because the victim was a police officer. But the CA, calling the assumption by the petitioner "self-serving," observed that the fact that the victim was a police officer himself did not sufficiently prove that police officers involved in the investigation were biased against the petitioner as to have "intentionally suppressed the gun," for bias and partiality could not be presumed; hence, the CA concluded that "said gun never existed, and this explains the failure of the defense to present it before the Court a quo." (see rollo, pp. 42-44; the bold underscoring is supplied for emphasis).
35People v. Dano, G.R. No. 117690, September 1, 2000, 339 SCRA 515, 531; David v. Court of Appeals, G.R. Nos. 111168-69, June 17, 1998, 290 SCRA 727, 743; People v. Unarce, G.R. No. 120549, April 4, 1997, 270 SCRA 756, 764.
36 G.R. No. 167333, January 11, 2016, 778 SCRA 83, 93.
37 G.R. No. 202124, April 5, 2016, 788 SCRA 331.
38People v. Surongon, 554 Phil. 448, 458 (2007).
39People v. Jugueta, supra, note 37, at 380-381.
40Ladines v. People, supra, note 36, at 94-95.