G.R. No.
214757 with Benny and John Does, was charged with murder in three similarly
PEOPLE OF TIIE PHlLIPPINES, Plaintiff-appellee
vs
TIRSO SIBBU, Accused-Appellant
DEL CASTILLO, J.:
This resolves the appeal from the January 6, 2014 Decision1 of the Court of
Appeals (CA) in CA-G.R. CR HC No. 04127 which affirmed with modification
the May 15, 2009 Decision2 of Branch 11, Regional Trial Court (RTC) of
Laoag City finding Tirso Sibbu (appellant) guilty beyond reasonable doubt of
attempted murder in Criminal Case No. 11722 and of murder in Criminal
Case Nos. 11721, 11723, and 11724.
In Criminal Case No. 11722, appellant, together with Benny Barid (Benny)
and John Does was charged with attempted murder allegedly committed as
follows:
That on or about the 6th day of December 2004, in Brgy. Elizabeth,
Municipality of Marcos, Province of Ilocos Norte, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with
an unlicensed firearm, conspiring and confederating together and mutually
helping one another, with intent to kill and treachery, did then and there
willfully, unlawfully, and feloniously shot BRYAN JULIAN y VILLANUEVA,
twice but missed, thereby commencing the commission of the crime of
Murder directly by overt act'>, but did not perform all the acts of execution
which should have produced the said crime, by reason of some cause
independent of his will, that is, accused are poor shooters, to the damage
and prejudice of the above-named victim.
That the crime was committed [in] the dwelling x x x of the victim at
nighttime and disguise was employed, with accused Sibbu wearing a bonnet
on his face.3
In Criminal Case Nos. 11721, 11723 and 11724, and except for the names of
the victims and the location of their gunshot wounds, appellant together
worded Informations4 allegedly committed as follows:
That on or about the 6th day of December 2004, in Brgy. Elizabeth,
Municipality of Marcos, Province of Ilocos Norte, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with
an unlicensed firearm, conspiring and confederating together and mutually
helping one another, with intent to kill and treachery, did then and t11ere
willfully, unlawfully, and feloniously shot [Trisha May Julian y Villanueva,
Ofelia Julian y Bagudan, and Warlito Julian y Agustin], inflicting upon
[her/him] gunshot wounds, which caused [her/his] instantaneous death, to
the damage and prejudice of the heirs of the above-named victim.
That the crime was committed in the dwelling x x x of the victim at
nighttime and disguise was employed, with accused Sibbu wearing a bonnet
on his face.
During arraignment held on July 22, 2005, appellant pleaded not guilty to
the charges against him. After pre-trial was conducted, trial on the merits
followed. On May 31, 2008, appellant's co-accused Benny was arrested.
However, his trial was held separately considering that the trial with respect
to the Appellant was also almost finished with the prosecution already
presenting rebuttal evidence.5
Version of the Prosecution
Bryan Julian (Bryan), the private complainant in Criminal Case No. 11722
and a common witness to all the cases, testified that between 6:30 and 7:00
p.m. of December 6, 2004, he was with his three-year old daughter, Trisha
May Julian (Trisha), the victim in Criminal Case No. 11721; his mother Ofelia
Julian (Ofelia), the victim in Criminal Case No. 11723; and his father, Warlito
Julian (Warlito), the victim in Criminal Case No. 11724 in the azotea of his
parents' house in Barangay Elizabeth, Marcos, llocos Norte when he saw
from a distance of about five meters a person in camouflage unifo1m with a
long firearm slung across his chest and a black bonnet over his head. When
the armed man inched closer to the house, he tried to fix his bonnet thereby
1|Page
providing Bryan the opportunity to see his face; Bryan had a clear look at
the armed man because there were Christmas lights hanging from the roof
of their porch. Bryan recognized the armed man as the appellant.6 Brian
also saw two men in crouching position at a distance of three meters away
from the appellant. Fearing the worst, Bryan shouted a warning to his
family. Appellant then fired upon them killing Trisha, Ofelia and Warlito.
Bryan ran inside the house where he saw his brother, Warlito Julian, Jr.
(Warlito Jr.) coming out of the bathroom. Bryan then proceeded to the
pigpen at the back of the house to hide.
Another prosecution witness, Eddie Bayudan (Eddie), testified that on
December 6, 2004, he was by a well near his house when he heard gunshots
coming from the house of Warlito and Ofelia. When he turned towards the
direction of the gunshot5, he saw a man about five meters away wearing a
black bonnet and a long-sleeved camouflage uniform and holding a long
firearm. He also saw another man crouching on the ground whom he
recognized as the accused Benny. Eddie went inside his house for his and his
family's safety. Afterwards, he heard Bryan shouting for help. When he went
out to investigate, he saw the dead bodies of Warlito, Ofelia, and Trisha.
Warlito Jr. also testified that he heard gunshots coming from outside their
house. When he went out of the bathroom, Bryan told him that appellant
gunned down their parents and his niece. In his cross-examination, Warlito,
Jr. claimed to have seen the appellant shooting at the porch of their house.7
Police Superintendent Benjamin M. Lusad (P/Supt. Lusad), chief of the
provincial intelligence and investigation branch of Ilocos Norte, testified that
at 7:00 a.m. of December 7, 2004, he conducted an investigation and an
ocular inspection at the crime scene. He found bloodstains on the floor of
the porch, the cadavers of the victims laid side by side in the sala, and bullet
holes in the cemented portion at the front of the house below the window
gril1.8 During his interview with Bryan, the latter pointed to appellant as the
gunman.9
SPOl Eugenio Navarro (SPOl Navarro) also testified that he went to the
crime scene together with Senior Police Inspector Arnold Dada, P02 Danny
Ballesteros, and SPO1 Lester Daoang, where they found 13 spent shells and
slugs of a caliber .30 carbine. Police Superintendent Philip Camti Pucay who
conducted the ballistic examination confirmed that the recovered shells and
slugs were fired from a caliber .30 carbine.
Version of the Defense
The appellant interposed the defense of denial and alibi. Appellant's father-
in-law, Eladio Ruiz (Eladio), testified that on December 6, 2004, appellant
did not leave their house because they had a visitor, Elpidio Alay (Elpidio);
moreover, appellant tended to his child. Eladio stated that the distance
between his house and Warlito's is approximately two kilometers and that it
would take an hour to negotiate the distance by foot.10
Eufrecina Ruiz (Eufrecina), mother-in-law of the appellant, also testified that
appellant had been living with th.em for two years before he was
arrested.11 She narrated that on December 6, 2004, appellant did not leave
their house the whole night as he was tending to his sick child. She also
claimed that they had a visitor who delivered firewood. Eufrecina alleged
that appellant did not own any firearm and that he did not know Benny.
Elpidio testified that on December 6, 2004, he went to the house of Eladio
to deliver a wooden divider.12 He arrived at around 6:00 p.m. and left at
7:00 a.m. the following day. Elpidio stated that the appellant did not leave
the house that night and that appellant was inside the house when he heard
explosions.
Appellant denied the charges against him. He testified that on December 6,
2004, he never left the house of his in-laws because he was taking care of
his sick son. He claimed to have heard the explosions but thought that those
were sounds of firecrackers since it was nearing Christmas.13 Appellant
denied having any misunderstanding with the Julian family, or knowing
Bryan and Benny personally, or possessing camouflage clothing.
Ruling of the Regional Trial Court
2|Page

On May 15, 2009, the RTC rendered judgment finding appellant guilty
beyond reasonable doubt of murder in Criminal Case Nos. 11721, 11723,
and 11724, and of attempted murder in Criminal Case No. 11722. The RTC
gave credence to Bryan's positive identification of appellant as the person
who shot at him and killed his daughter, mother and father. On the other
hand, the RTC found appellant's defense of denial and alibi weak.
The dispositive part of the RTC's Decision reads:
WHEREFORE, judgment is hereby rendered as follows:
1) In Criminal Case No. 11721, accused TIRSO SIBBU is hereby declared
GUILTY BEYOND REASONABLE DOUBT of the crime of murder. He is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA. Further, he is
hereby ORDERED to pay the heirs of Trisha Mae Julian y Villanueva the
[amounts] of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages
and ₱25,000.00 as exemplary damages;
2) In Criminal Case No. 11722, accused TIRSO SIBBU is hereby declared
GUILTY BEYOND REASONfJ3LE DOUBT of the crime of attempted murder. He
is hereby sentenced to suffer the penalty of SIX (6) YEARS of prision
correccional as minimum to TEN (10) YEARS of prision mayor as maximum.
3) In Criminal Case No. 11723, accused TIRSO SIBBU is hereby declared
GUILTY BEYOND REASONABLE DOUBT of the crime of murder. He is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA. Further, he is
hereby ORDERED to pay the heirs of Ofelia Juliany Bayudan the [amounts] of
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages and ₱25,000.00
as exemplary damages; and
4) In Criminal Case No. 11724, accused TIRSO SIBBU is hereby declared
GUILTY BEYOND REASONABLE DOUBT of the crime of murder. He is hereby
sentenced to suffer the penalty of RECLUSION PERPETIJA. Further, he is
hereby ORDERED to pay the heirs of Warlito Juliany Agustin the [amounts]
of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages and
₱25,000.00 as exemplary damages.
In Criminal Case Nos. 11721, 11723 and 11724, accused TISO SIBBU is
hereby ordered to pay the heirs of Trisha Mae Julian y Villanueva; Ofelia
Julian y Bayudan; and Warlito Julian y Agustin the amount of ₱55,602.00 as
actual damages.
SO ORDERED.14
Aggrieved by the RTC's Decision, appellant appealed to the CA.
Ruling of the Court of Appeals
On January 6, 2014, the CA aft1rmed the RTC's Decision with modification as
follows:
WHEREFORE, in light of the foregoing discussion, the appeal is DISMISSED.
The Decision dated May 15, 2009, issued by the Regional Trial Court, Branch
11, Laoag City in Criminal Case Nos. 11721, 11722, 11723 and 11724, is
AFFIRMED with MODIFICATION, as follows:
1. In Criminal Case No. 11721, appellant Tirso Sibbu is hereby declared
Guilty beyond reasonable doubt of the crime of murder. He is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA. Further, he is
hereby ordered to pay the heirs of Trisha May Julian y Villanueva the
[amounts] of ₱75,000.00 as civil indemnity, ₱50,000.00 as moral damages
and ₱30,000.00 as exemplary damages, with interest at the legal rate of 6%
percent from the finality of this judgment until fully paid;
2. In Criminal Case No. 11723, appellant Tirso Sibbu is hereby declared
Guilty beyond reasonable doubt of the crime of murder. He is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA. Further, he is
hereby ordered to pay the heirs of Ofelia Juliany Bayudan the [amounts] of
₱75,000.00 as civil indemnity, ₱50,000.00 as moral damages and ₱30,000.00
3|Page
as exemplary damages, with interest at the legal rate of 6% percent from
the finality of this judgment until folly paid; and
3. In Criminal Case No. 11724, appellant Tirso Sibbu is hereby declared
Guilty beyond reasonable doubt of the crime of murder. He is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA.Further, he is
hereby ordered to pay the heirs of Ofelia Juliany Bayudan the [amounts] of
₱75,000.00 as civil indemnity, ₱50,000.00 as moral damages and ₱30,000.00
as exemplary damages, with interest at the legal rate of 6% percent from
the finality of this judgment until fully paid.
No costs.
SO ORDERED.15
Dissatisfied with the CA's Decision, appellant elevated his case to this Court.
On February 9, 2015, the Court issued a Resolution requiring the parties to
submit their respective Supplemental Briefs. However, the appellant opted
not to file a supplemental brief since he had exhaustively discussed his
arguments before the CA. The Office of the Solicitor General also
manifested that there was no longer any need to file a supplemental brief
since the appellant did not raise any new issue in his appeal before this
Court.16
Issues
The main issue raised in the Appellant's Brief concerns Bryan's identification
of the appellant as the assailant. The appellant contends that the trial court
erred in (1) giving undue credence to the testimony of the alleged
eyewitness Bryan; and (2) in finding him guilty beyond reasonable doubt as
charged because the prosecution failed to overthrow the constitutional
presumption of innocence in his favor.17 Further, appellant argues that the
aggravating circumstances of treachery, dwelling, and use of disguise were
not sufficiently established.
Our Ruling
The appeal is unmeritorious.
We uphold the findings of the RTC, which were affirmed by the CA, that
Bryan positively identified appellant as the person who shot at him and
killed Warlito, Ofelia, and Trisha. We have consistently ruled that factual
findings of trial comts, especially when affirmed by the appellate court, are
entitled to respect and generally should not be disturbed on appeal unless
certain substantial facts were overlooked which, if considered, may affect
the outcome of the case. After due consideration of the records of the case
and the evidence adduced, the Court finds that the RTC and the CA did not
err in their appreciation of the facts and evidence.
We find that Bryan was able to identify the appellant as the assailant in the
shooting incident; there is no reason to doubt his positive testimony. As
aptly observed by the RTC, Bryan's narration of how he was able to
recognize the appellant was credible and convincing, to wit:
q You said somebody [shot] at you, your father, your mother, and your
daughter while you were at the azotea of the house of your father on
December 6, 2004. Did you see the person who shot at you, your father,
your mother, and your daughter?
a Yes, ma'am.
xxxx
q How far was [the gunman] when you saw him at the west side? a Around
five (5) meters away, ma'am.
q What was his position at the time you first saw him?
4|Page
a He was at this position, ma'am. (Witness is showing as if a gun was slung
on his neck) Then I told my family, ''Somebody would shoot us, let us all run
and hide," and then he shot [at] me twice, ma'am.
xxxx
q How about [his] face x x x, can you x x x describe [it] to us?
a When be came near us he fixed his bonnet which covered one eye only
that is why I recognized him; and even though his face was covered with [a]
bonnet, I could still recognize him because I usually mingled with him,
ma'arn.
xxxx
q You said you were able to recognize his face because you were familiar
with him. Who was that person whom you recognized?
A Tirso Sibbu, ma'am.
Q If this Tirso Sibbu is inside the courtroom today, would you be able to
recognize him?
A Yes, ma'am.
Q Kindly look around the courtroom and point to us if he is inside the
courtroom?
A (Witness is pointing to a man wearing a black T-shirt with blue denim
pants who when asked his name answered Tirso Sibbu)
Q You said you were able to recognize the face of this man Tirso Sibbu
because you are familiar with him? Can you tell us why you were familiar
with him? What were the circumstances where you mingled with him?
A He was a jueteng collector and he came to our place three (3) times a day
to get the bets, ma' am.
xxxx
q Considering, Mr. Witness, that it was already x x x 6:30 [to] 7:00 in the
evening, how were you able to see the face of Tirso Sibbo?
A There was a light in front of the azotea, ma'am.
q What was the light in your azotea you are referring to?
a Christmas lights that were not blinking, ma'am.18
xxxx
q Now, Mr. Witness, how far [was the accused when you first noticed his
presence]?
a More or less 5 meters, sir.
xxxx
q By the way, that was the first time [you noticed the presence of] the
accused. Was that in the same place you saw him fire his gun?
a He came nearer, sir.
xxxx
q Now, Mr. Witness, [how did you recognize the accused]?
a He fixed his bonnet [his] face was partly covered, sir.
q x x x That bonnet x x x covered the face, is that correct?
5|Page
a Only one eye was covered so he fixed it sir.
q And the whole face was covered except one eye, is that what you want to
impress the Honorable Court?
a The hole that was meant for his left eye went at his right eye so he
stretched the bonnet and his face was uncovered that is why I recognized
him, sir.
q You said that his face was uncovered, are you referring, to the whole face
that was uncovered?
a Because of the stretching, the eyes and the nose were uncovered, sir.19
From Bryan's testimony above, it is clear that he was only five meters away
from the appellant when the shooting incident happened. While the
appellant was seen wearing a bonnet over his head, Bryan was able to get a
glimpse of appellant's face when the latter fixed his bonnet. In addition,
Christmas lights hanging from the roof of the porch provided illumination
enabling Bryan to identify the appellant. Moreover, Bryan is familiar with
the appellant's built, height, and body movements. As correctly pointed out
by the CA:
It is equally of common knowledge that the eyes readily [adjust] to the
surrounding darkness even if one stands in a lighted area, and the distance
of five meters is not an impossible or improbable way as to preclude
identification.1âwphi1
Besides, Bryan’s identification did not solely rely on facial recognition but
also from appellant's body built and height, and the way he walked and
moved, all proper standards of identification as corroborated in the
testimony of an experienced police officer and PMA graduate Police
Superintendent Benjamin M. Lusad, chief of the provincial intelligence and
investigation unit of Ilocos Norte.20
Based on the foregoing, the Court is convinced that the RTC and the CA
were correct in holding that Bryan positively identified the appellant as the
person who shot at him and killed Warlito, Ofelia, and Trisha.
Appellant also questions the RTC's appreciation of the aggravating
circumstances of treachery, dwelling. and use of disguise. Citing People v.
Catbagan,21 appellant argues that "[t]reachery cannot be considered when
there is no evidence that the accused had resolved to commit the crime
prior to the moment of the killing; or that the death of the victim was the
result of premeditation, calculation, or reflection."
We disagree. Treachery was correctly appreciated as qualifying
circumstance in the instant case.
Treachery is present when the offender commits any of the crimes against
person, employing means, methods, or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make."22
The case of Catbagan has an entirely different factual context with the case
at bar. In Catbagan, the accused was a police officer who investigated
reported gunshots during an election gun ban in the residence of one of the
victims. Prior to the shooting, Catbagan had no intention of killing anyone. It
just so happened that during a heated exchange, Cc1thagan drew his
firearm and shot the victims. In this case however, before the shooting
incident, appellant was seen with a gun slung over his neck and a bonnet
covered his face to conceal his identity. It is clear that appellant's purpose is
to hmm and kill his victims.
In this case, the evidence on record reveals that at the time of the shooting
incident, Warlito, Ofelia, Trisha, and Bryan were at the porch of their house
totally unaware of the impending attack. In addition, they were all unarmed
thus unable to mount a defense in the event of an attack. On the other
hand, appellant and his cohorts were armed. They also surreptitiously
6|Page
approached the residence of the victims. Appellant, in particular, wore
camouflage uniform to avoid detection. Although Bryan was able to warn
his family about the impending attack, it was too late for the victims to
scamper for safety or to defend themselves. At the time Bryan became
aware of appellant's presence, the latter was already in the vicinity of about
five meters. In fine, appellant employed deliberate means to ensure the
accomplishment of his purpose of killing his victims with minimal risk to his
safety. There can be no other conclusion than that the appellant's attack
was treacherous.
With regard to the aggravating circumstance of dwelling, the trial court
correctly held:
In the instant cases, the victims were at their azotea in their house when
accused Tirso Sibbu fired shots at them. Tirso Sibbu was outside the house
of the victims. Under these circumstances, the aggravating circumstance of
dwelling can be appreciated against Tirso Sibbu. Thus, the Supreme Court
ruled:
xxxx
The aggravating circumstance of dwelling should be taken into account.
Although the triggerman fired the shot from outside the house, his victim
was inside. For this circumstance to be considered it is not necessary that
the accused should have actually entered the dwelling of the victim to
commit the offense; it is enough that the victim was attacked inside his own
house, although the assailant may have devised means to perpetrate the
assault from without x x x.23
The use of disguise was likewise correctly appreciated as an aggravating
circumstance in this case. Bryan testified that the appellant covered his face
with a bonnet during the shooting incident There could be no other possible
purpose for wearing a bonnet over appellant's face but to conceal his
identity, especially since Bryan and appellant live ir1 the same barangay and
are familiar with each other.24
As for the defense put up by the appellant that he was inside the house of
his in-laws during the shooting, the Court is unconvinced by his denial and
alibi.1avvphi1 Aside from being the weakest of all defenses, appellant was
not able to establish that it was physically impossible for him to be at the
scene of the crime at the time the shooting incident happened. We have
consistently 1uled that ''for the defense of alibi to prosper, the accused
must prove not only that he was at some other place when the crime was
committed, but also that it was physically impossible for him to be at the
scene of the crime or its immediate vicinity through clear and convincing
evidence."25
In this case, the crime was committed in the residence of the victims which
is located within the same barangay where appellant resides. In fact,
appellant's father-in-law testified that the distance between the crime
scene and his house is "more or less 1 kilometer,"26 or two kilometers as he
later amended and that said distance could be traversed in one hour by
foot.27 Verily, appellant's alibi must fail for failure to show that it was
physically impossible for him to be at the crime scene or its immediate
vicinity at the time of its commission.
The Court also upholds appellant's conviction for attempted murder.
Appellant commenced the commission of murder through overt acts such as
firing his firearm at the residence of the victims but did not perfom1 all the
acts of execution which should produce murder by reason of some cause
other than his own spontaneous desistance. Appellant simply missed his
target; he failed to perform all the acts of execution to kill Bryan, Appellant
is therefore guilty of attempted murder, Unfortunately, Warlito, Ofelia and
Trisha had to bear the brunt of appellant's firearm.
All told, appellant was correctly convicted of three counts of murder
considering the qualifying circumstance of treachery and one count of
attempted murder. Since two aggravating circumstances of dwelling and use
of disguise attended the commission of the crime of murder, appellant
should be sentenced to death in accordance with Article 6328 of the Revised
7|Page
Penal Code. Under Article 24829 of the Revised Penal Code, murder is In summary:
punishable by reclusion perpetua to death. Thus under Article 63, the higher
penalty should be imposed. However, because of the passage of Republic 1. For those crimes like, Murder, Parricide, Serious Intentional Mutilation,
Act No. 9346, or An Act Prohibiting the Imposition of Death Penalty in the Infanticide, and other crimes involving death of a victim where the penalty
Philippines, the imposition of death penalty is now prohibited.1âwphi1 The consists of indivisible penalties:
law provides that in lieu of the death penalty, the penalty of reclusion
perpetua shall be imposed with no eligibility for parole. Accordingly5 1.1 Where the penalty imposed is death but reduced to reclusion perpetua
appellant should suffer the penalty of reclusion perpetua without eligibility because of R. A 9364:
forparole in lieu of the death penalty in Criminal Case Nos. 11721, 11723,
11724. a. Civil indemnity-₱100,000.00

In People v. Jugueta,30 the Court held that: b. Moral damages –₱l00,000.00

x x x [F]or crimes where the imposable penalty is death in view of the c. Exemplary damages – ₱100,000.00
attendance of an ordinary aggravating circumstance but due to the
prohibition to impose the death penalty, the actual penalty imposed is 1.2 Where the crime committed was not consummated:
reclusion perpetua, the latest jurisprudence pegs the amount of
₱100,000.00 as civil indemnity and ₱l00,0000.00 as moral damages. For the a. Frustrated:
qualifying aggravating circumstance and/or the ordinary aggravating
circumstances present, the amount of ₱l00,000.00 is awarded as exemplary i. Civil indemnity-₱75,000.00
damages aside from civil indemnity and moral damages. Regardless of the
attendance of qualifying aggravating circumstance, the exemplary damages ii. Moral damages – ₱75,000.00
shall be fixed at ₱100,000.00. x x x
iii. Exemplary damages – ₱75,000.00
xxxx
b. Attempted:
Aside from those discussed earlier, the Court also awards temperate
damages in certain cases. x x x Under Article 2424 of the Civil Code, i. Civil indemnity – ₱50,000.00
temperate damages may be recovered, as it cannot be denied that the heirs
of the victims suffered pecuniary loss allthough the exact amount was not ii. Moral damages – ₱50,000.00
proved. In this case, the Court now increases the amount to be awarded as
temperate damages to ₱50,000.00. iii. Exemplary damages –₱50,000.00

xxxx Hence, in Criminal Case Nos. 11721, 11723, and 11724 where the appellant
was convicted of murder, the crime being attended by the qualifying
8|Page
circumstance of treachery and by the aggravating circumstances of dwelling
and disguise, we further modify the awards of civil indemnity, moral
damages, and exemplary damages to ₱100,000.00 each for each case.
Moreover, since the award of actual damages in the amount of ₱55,602.00
pertained to all three cases, the same should be modified to ₱50,000,00 for
each case.
In Criminal Case No. 11722 for attempted murder, the RTC as affirmed by
the CA imposed the penalty of six (6) years of prision correccional as
minimum to ten (10) years as prision mayor as maximum.
In People v. Jugueta,31 the Court en banc held as follows:
In view of the attendant ordinary aggravating circumstance, the Court must
modify the penalties imposed on appellant. Murder is punishable by
reclusion perpetua to death, thus, with an ordinary aggravating
circumstance of dwelling, the imposable penalty is death for each of two (2)
counts of murder. However, pursuant to Republic Act (RA) No. 9346,
prescribing the imposition of the death penalty, the penalty to be imposed
on appellant should be reclusion perpetua for each of the two (2) counts of
murder without eligibility for parole. With regard to the four (4) counts of
attempted murder, the penalty prescribed for each count is prision mayor.
With one ordinary aggrawating circumstance the penalty should be imposed
in its maximum period, Applying the Indeterminate Sentence Law, the
maximum penalty should be from two (10) years and one (l) day to twelve
(12) years of prision mayor, while the minimum shall be taken from the
penalty next lower in degree, i.e., prision correccional, in any of its periods,
or anywhere from six (6) months and one (1) day to six (6) years. This Court
finds it apt to impose on appellant the Indeterminate penalty of four (4)
years, two (2) months and one (l) day of prission correccional, as minimum,
to ten (10) years and one (1) day of prision mayor, as minimum, for each of
the four (4) counts of attempted murder. (Emphasis supplied)
Applying the foregoing, the proper imposable penalty for attempted
murder, and considering the attendant aggravating circumstances of
dwelling and disguise, is four (4) years, two (2) months and one (1) day of
prision correccional, as minimum, to ten (10) years and one (l) day of prision
mayor, as maximum. In addition, appellant is liable to pay civil indemnity,
moral damages, and exemplary damages at ₱50,000.00 each. Finally, these
monetary awards shall earn interest at the rate of 6% per annum from the
date of finality of this Decision until fully paid.
WHEREFORE, the January 6, 2014 Decision of the Court of Appeals in CA-
G.R. CR-HC No. 04127 is AFFIRMED with FURTHER MODIFICATIONS as
follows:
1. In Criminal Case No. 11721, appellant Tirso Sibbu is hereby declared guilty
beyond reasonable doubt of the crime of Murder. He is sentenced to suffer
the penalty of reclusion perpetua with no eligibility for parole. Further, he is
ordered to pay the heirs of Trisha May Julian y Villanueva the amounts of
₱l00,000.00 as civil indemnity, ₱100,000.00, as moral damages, ₱100,000.00
as exemplary damages, and ₱50,000.00 as temperate damages, all with
interest at the ro1te of 6% per annum from the date of finality of this
Decision until fully paid.
2. In Criminal Case No. 11723, appellant Tirso Sibbu is hereby declared guilty
beyond reasonable doubt of the crime of Murder. He is sentenced to suffer
the penalty of reclusion perpetua with no eligibility for parole. Further, he is
ordered to pay the heirs of Ofelia Julian y Bayudan the amounts of
₱l00,000.00 as civil indemnity, ₱100,000.00 as moral damages, ₱100,000.00
as exemplary damages, and ₱50,000.00 as temperate damages, all with
interest at the rate of 6% per annum from date of finality of this Decision
until fully paid.
3. In Criminal Case No. 11724, appellant Tirso Sibbu is hereby declared guilty
beyond reasonable doubt of the crime of Murder. He is sentenced to suffer
the penalty of reclusion perpetua with no eligibility for parole. Further, he is
ordered to pay the heirs of Warlito Julian, Sr. y Agustin the amounts of
₱l00,000.00 as civil indemnity, ₱100,000.00 as moral damages, ₱100,000.00
as exemplary damages, and ₱50,000.00 as temperate damages, all with
9|Page
interest at the rate of 6% per annum from date of finality of this Decision
until fully paid.

4. In Criminal Case No. 11722, appellant Tirso Sibbu is hereby declared guilty
beyond reasonable doubt of attempted 1nurdcr and is sentenced to suffer
the penalty of four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to ten (10) years and one (1) day of prision
mayor, as maximum. Further, he is ordered to pay Bryan Julian y Villanueva
civil indemnity, moral damages, and exemplary dams.gos each in the
amount of ₱50,000.00, with interest at the rate of 6% per annum from the
date of finality of this Decision until fully paid.

SO ORDERED.

10 | P a g e
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ALFREDO DULIN Y NARAG, Accused-Appellant.
BERSAMIN, J.:
The accused is guilty only of homicide in a prosecution for murder where
the record does not substantiate the attendance of treachery. But he may
not benefit from the privileged mitigating circumstance of incomplete self-
defense if there was no unlawful aggression from the victim. The Case
Alfredo Dulin y Narag appeals the decision promulgated on August 26,
2005,1 whereby the Court of Appeals (CA) affirmed with modification his
conviction for the murder of Francisco Batulan rendered on December 29,
1997 by the Regional Trial Court (RTC), Branch 3, in Tuguegarao, Cagayan.2
In convicting him, the RTC had appreciated the privileged mitigating
circumstance of incomplete self-defense, and had then sentenced him to
"suffer the penalty of reclusion temporal in its maximum period of
imprisonment ranging from 17 years and 4 months and 1 day to 20 years."
On appeal, the CA prescribed reclusion perpetua.
Antecedents
The information filed on January7, 1991 averred as follows:
That on or about August 22, 1990, in the Municipality of Tuguegarao,
Province of Cagayan, and within the jurisdiction of this Honorable Court, the
said accused, Alfredo Dulin y Narag alias Freddie, armed with a sharp
blade(d) instrument, with intent to kill, with evident premeditation and with
treachery did then and there willfully, unlawfully and feloniously attack,
assault and stab one, Francisco Batulan, inflicting upon him several stab
wounds on the different parts of his body which caused his death.
Contrary to law.3
During the trial, the Prosecution presented four witnesses, namely: (a) Dr.
Nelson Macaraniag, (b) Alexander Tamayao, (c) Romulo Cabalza and (d)
Estelita Batulan. Their version follows. Tamayao was on Tamayao Street in
Atulayan Norte, Tuguegarao at about 10:00 o’clock in the evening of August
22, 1990 when a young man came running from the house of Vicente Danao
towards the house of Batulan, shouting that his Uncle Totoy (Batulan) had
been stabbed. Tamayao rushed towards Danao’s house, which was about 30
meters from his own house, and there he saw Dulinstabbing Batulan who
was already prostrate face down. Dulin was on top of Batulan, as if kneeling
with his left foot touching the ground. Dulin was holding Batulan by the hair
with his left hand, and thrusting the knife at the latter with his right hand.
Seeing this, Tamayao ran towards Batulan’s house to inform Estelita
Batulan, the victim’s wife who was his aunt, about the incident. He went
home afterwards.
Tamayao mentioned of the long standing grudge between Batulan and
Dulin, and of seeing them fighting in April 1990. He recalled Dulin uttering
on two occasions: He will soon have his day and I will kill him.4
Cabalza, a barangay tanod, was in his house around 10:00 o’clock in the
evening of August 22, 1990 when he heard the commotion in Danao’s house
which was facing his house. It was Carolina, Danao’s daughter, screaming
for help. He thus sought out a fellow barangay tanod. On his return to the
scene, he found Batulanat the door of Danao’s house, with Dulin wielding a
sharp pointed instrument, about 6-7 inches long. Fearing for his safety, he
rushed to the Barangay Hall to seek the assistance of Edwin Cabalza and
Nanding Buenaflor to bring Batulan to the Provincial Hospital in Carig,
Tuguegarao.5
Estelita recalled that Tamayao went to her house around 10:00 o’clock in
the evening of August 22, 1990 to inform her that Dulin had stabbed her
husband in Danao’s house. She rushed to Danao’s house but fainted on the
way. Upon regaining consciousness, she learned that her husband had been
rushed to the hospital. On her way to the hospital, she met Barangay
Captain Loreto Meman, who told her: Finally, Freddie Dulin killed your
husband as he vowed to do. At the hospital, she was told that her husband
had sustained two wounds in the back and several stab wounds in the front,
11 | P a g e
and was being attended to at the hospital’s intensive care unit (ICU) before
he expired.
Estelita said that Barangay Captain Meman went to her husband’s wake and
repeated what he had said to her about Dulin. But when she later on sought
out Barangay Captain Meman to ask him to confirm what he had told her
about Dulin’s vowing to kill her husband, Barangay Captain Meman’s
response was: I’m sorry I cannot go and declare what I have stated because I
am afraid of FREDDIE and he will kill all those persons who will testify in
their favor.6
Estelita mentioned of the heated discussion between her husband and his
nephew, Seong Bancud, in front of Danao’s house in April 1990. On that
occasion, Dulin wielded a knife with which he tried to stab her husband.
Dulin was pacified only when she went to the aid of her husband, but she
then heard Dulin saying: You will soon have your day, I will kill you.7
Batulan was attended to at the Cagayan Valley Regional Hospital on August
22, 1990 by Dr. Macaraniag, who said that the victim was in a state of shock
from his 12 stab wounds. Dr. Macaraniag was part of the three teams that
conducted the surgery on Batulan. He issued the Medico-Legal Certificate8
attesting that Batulan died on August 24, 1990 at 12:15 a.m.; and that
Batulan had sustained several injuries, as follows:
Multiple stab wounds #12
(1) Lacerated wound, sternum, 1 cm.
(2) Lacerated wound, 4th ICS, 2 cm. MCL
(3) Lacerated wound, 1 cm. post axillary line
(4) Lacerated wound, 3 x 2 cm. 3 cm below scapula
(5) Lacerated wound, 3 cm. lateral aspect, left hand
(6) Lacerated wound, 3 cm. anterior aspect, left hand
(7) Lacerated wound, 3 cm. anterior aspect, about 3 cm. from elbow, left
(8) Lacerated wound, 2 cm. middle third, left forearm
(9) Lacerated wound, 3 cm. posterior aspect left forearm 4 cm. from left
wrist
(10) Lacerated wound, 3 cm. lateral aspect of left foo
(11) Lacerated wound, 4 cm. lateral aspect, left thigh
(12) Lacerated wound, 2 cm. scapular area.
Dr. Macaraniag stated the cause of death to be "Hypovolemic shock
secondary to Massive Hemothorax secondary to Multiple stab wounds."10
He clarified in court that there were clerical errors in the preparation of the
Medico-Legal Certificate because his handwritten records indicated that
Batulan had sustained stab instead of lacerated wounds. He surmised that
one of the clerks could have misread his handwriting in the process of
transcription.11
Estelita declared that her late husband had earned a living from buying pigs,
deriving a monthly income of ₱8,000.00; that their marriage bore only one
child; that she spent more or less ₱6,500.00 for Batulan’s hospitalization,
including his medicines, and ₱36,000.00 for Batulan’s 10-day wake, his
burial attire and his coffin; that during the wake she butchered one cow
worth ₱6,800.00 and six pigsworth ₱15,000.00; that his death caused her
and her family so much pain; and that she and her family expended a total
of ₱70,000.00, plus the ₱20,000.00 for the counsel’s services in bringing the
criminal charge against Dulin.12
In his defense, Dulin testified thatin the evening of August 22, 1990, he was
in his house in Atulayan Norte, Tuguegarao, Cagayan with Doming Narag,
Imelda Danao, Jun Danao, Carolina Dulin and Caridad Narag; that Nicanor
Annariao and Raymund Soriano arrived at his house to see the fighting cocks
being sold by Alberto Eugenio (Alberto); that Alberto was not yet around,
arriving only at about 8:00 o’clock in the evening to talk with Raymund and
Nicanor about the price of the fighting cocks; that after their transaction,
Alberto served Nicanor and Raymund food, and he (Dulin) and Jun Danao
thereafter accompanied Raymund and Nicanor to the highway to get a
tricycle ride, but on their way, they passed Angel Bancud who called out to
him: that he (Dulin) asked the others to go ahead, and he would just catch
up with them; that as he (Dulin) approached Bancud, Batulan, the cousin of
his (Dulin) mother, stabbed him on the right side of his body and in the left
12 | P a g e
hand; that he complained to Batulan: Uncle, you hit me (Dinisgrasya nakun),
but Batulan replied: I will really kill you; that he (Dulin) ran to the upper
level of Carolina Danao’s house, pursued by Batulan who stabbed him again
several times; that they grappled for the weapon until he (Dulin) was able to
wrest it from Batulan; that he (Dulin) stabbed Batulan with the weapon, and
they struggled until he (Dulin) felt weak, eventually falling to the ground;
and that he (Dulin) regained consciousness only the next day at the hospital.
Dulin insisted that there was no grudge between him and Batulan, but
interjected that the barangay captain would summon him to bring Batulan
home each time the latter got drunk at night.
Erlinda Danao, Records Officer of the Cagayan Valley Regional Hospital in
Tuguegarao, Cagayan, authenticated the hospital records showing that Dulin
had also been injured.13 Judgment of the RTC
On December 29, 1997, the RTC rendered its decision convicting Dulin of
murder,14 to wit: WHEREFORE, judgment is hereby rendered finding the
accused Alfredo Dulin guilty beyond reasonable doubt of the crime of
Murder, and appreciating the privileged mitigating circumstance of
incomplete self-defense and no aggravating circumstance, this Court hereby
lowers the penalty of said crime by two degrees and hereby sentences him
to suffer the penalty of reclusion temporal in its maximum period of
imprisonment ranging from 17 years and 4 months and 1 day to 20 years
and to indemnify the heirs of the victim in the amount of ₱50,000.00 and to
pay actual damages in the amount of ₱36,000.00 and moral damages for
₱40,000.00.
Without subsidiary imprisonment in case of insolvency and without
pronouncement as to costs. SO ORDERED.15
Decision of the CA
In his appeal, Dulin contended that his crime should be homicide instead of
murder, considering the RTC’s appreciation of incomplete self-defense as a
privileged mitigating circumstance; and that even if self-defense should be
unavailing, he could be found guilty only of homicide because it was the
victim who had first attacked by stabbing him, and that the multiple wounds
inflicted on the victim did not mean that he had not been justified in killing
the victim. He argued that the penalty imposed on him was incorrect
considering the absence of any aggravating circumstance and the presence
of the privileged mitigating circumstance of incomplete self-defense.
On August 26, 2005, the CA affirmed the conviction subject to the
modification of the civil liability, decreeing:
The Court agrees with the OSG representing the State that the penalty
requires modification. The Court a quo committed error in the imposition of
the proper penalty. The crime committed by appellant in the case at bench
is murder qualified by treachery. There being no aggravating and no
mitigating circumstance, the proper penalty is reclusion perpetua. Where no
mitigating or aggravating circumstance attended the commission of the
crime, the medium period of the imposable penalty, which is reclusion
perpetua, should be imposed by the trial court.
WHEREFORE, the judgment of conviction is hereby AFFIRMED subject to the
modification of the penalty and awards of damages. Appellant ALFREDO
DULIN y NARAG is hereby sentenced to suffer the penalty of reclusion
perpetua. The award of ₱36,000 actual damages is DELETED. Appellant is
ordered to pay the heirs of Francisco Batulan ₱20,000 as temperate
damages and ₱50,000 by way of moral damages.
SO ORDERED.16
On January 12, 2006, the CA denied Dulin’s motion for reconsideration.17
Issues
In this appeal, Dulin submits the following issues for our review and
consideration, to wit:
I.) WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO
APPRECIATE THE PRESENCE OF THE JUSTIFYING CIRCUMSTANCE OF SELF-
13 | P a g e
DEFENSE DESPITE CLEAR AND CONVINCING EVIDENCE SHOWING THE
ELEMENTS OF SELF-DEFENSE.
II.) WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT CONSIDERING
SELF-DEFENSE AS A PRIVILEGED MITIGATING CIRCUMSTANCE, IN THE EVENT
THAT THE APPRECIATION OF A COMPLETE SELF-DEFENSE IS UNAVAILING.
III.) WHETHER OR NOT THE COURT OF APPEALS ERRED IN APPRECIATING
THE QUALIFYING CIRCUMSTANCE OF TREACHERY IN THE KILLING OF
FRANCISCO.
Ruling of the Court
The appeal is partly meritorious.
I.
There was no self-defense
The accused who pleads self-defense admits the authorship of the crime.
The burden of proving self-defense rests entirely on him, that he must then
prove by clear and convincing evidence the concurrence of the following
elements of self-defense, namely: (1) unlawful aggression; (2)
reasonable necessity of the means employed to prevent or repel the
unlawful aggression; and (3) lack of sufficient provocation on the part of the
person defending himself.19 The most important of all the elements is
unlawful aggression,20 which is the condition sine qua non for upholding
self-defense as a justifying circumstance. Unless the victim committed
unlawful
aggression against the accused, self-defense, whether complete or
incomplete, should not be appreciated, for the two other essential elements
of self-defense would have no factual and legal bases without any unlawful
aggression to prevent or repel.
Unlawful aggression as the condition sine qua non for upholding self-
defense is aptly described in People v. Nugas,21 as follows:
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.
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.
Dulin argues that the CA should have appreciated the justifying
circumstance of self-defense in his favor because all its elements had been
present in the commission of the crime.
In rejecting Dulin’s argument, the CA observed that although Batulan had
initiated the attack against Dulin the unlawful aggression from Batulan
effectively ceased once Dulin had wrested the weapon from the latter. The
CA thus found and held in its assailed decision:
14 | P a g e
Appellant testified that after the initial stabbing attack on him, he was able
to take possession of the weapon and ran towards the second level of the
house of Vicente Danao, away from FRANCISCO. At that point, the unlawful
aggression against him effectively ceased. When
FRANCISCO and appellant again grappled for possession of the weapon,
appellant now became the armed protagonist, and FRANCISCO’s act of
trying to wrest the weapon cannot be considered as unlawful aggression. At
that moment, appellant no longer faced any imminent or immediate danger
to his life and limb from FRANCISCO.
xxxx
From the foregoing, it is evidently clear that FRANCISCO could no longer be
considered as unlawful aggressor. Appellant had nothing to repel.
Therefore, appellant’s theory that he was merely defending himself when
he killed FRANCISCO is unavailing. A fortiori, there would be no
basis for the second requisite of self-defense.22
We uphold the finding and holding of the CA. Batulan, albeit the initial
aggressor against Dulin, ceased to be the aggressor as soon as Dulin had
dispossessed him of the weapon. Even if Batulan still went after Dulin
despite the latter going inside the house of Danao, where they again
grappled for control of the weapon, the grappling for the weapon did not
amount to aggression from Batulan for it was still Dulin who held control of
the weapon at that point. Whatever Dulin did thereafter – like stabbing
Batulan with the weapon – constituted retaliation against Batulan. In this
regard, retaliation was not the same as self-defense. In retaliation, the
aggression that the victim started already ceased when the accused
attacked him, but in self-defense, the aggression was still continuing when
the accused injured the aggressor.23 As such, there was no unlawful
aggression on the part of Batulan to justify his fatal stabbing by Dulin.
Still, Dulin vigorously insists that the initial aggression employed by Batulan
did not cease because the latter followed him into Danao’s house with the
singular purpose of ending his life; and that there was no gap in the
aggression initiated by Batulan.24
The insistence is unwarranted. Dulin admitted having successfully disarmed
Batulan and then running away from him. With the aggression by Batulan
having thereby ceased, he did not anymore pose any imminent threat
against Dulin. Hence, Batulan was not committing any aggression when
Dulin fatally stabbed him.
It is notable, too, that the results of the medico-legal examination indicating
Batulan to have sustained twelve stab wounds25 confirmed the cessation of
the attack by Batulan. The numerosity and nature of the wounds inflicted by
the accused reflected his determination to kill Batulan, and the fact that he
was not defending himself.26
II.
Incomplete self-defense was not proved
Pursuant to Article 69 of the Revised Penal Code, the privileged mitigating
circumstance of incomplete self-defense reduces the penalty by one or two
degrees than that prescribed by law. For this purpose, the accused must
prove the existence of the majority of the elements for self-defense, but
unlawful aggression, being an indispensable element, must be present.
Either or both of the other requisites may be absent, namely: reasonable
necessity of the means employed to prevent or repel it, or the lack of
sufficient provocation on the part of the person defending himself.27
Dulin posits that the totality of circumstances indicated that his acts
constituted incomplete self-defense, and must be appreciatedas a privileged
mitigating circumstance.28
15 | P a g e
Dulin’s position is untenable. Like in complete self-defense, Dulin should
prove the elements of incomplete self-defense by first credibly establishing
that the victim had committed unlawful aggression against him. With
Batulan’s aggression having already ceased from the moment that Dulin
divested Batulan of the weapon, there would not be any incomplete self-
defense. Moreover, as borne out by his stabbing of Batulan several times,
Dulin did not act in order to defend himself or to repel any attack, but
instead to inflict injury on Batulan.
III.
The RTC and CA erred in appreciating
the attendance of treachery
Murder is the unlawful killing of any person attended by any of the
circumstances listed Article 248 of the Revised Penal Code.1âwphi1
Treachery, which was alleged in the information, is one such qualifying
circumstance.
There is treachery when the offender commits any of the crimes against
persons, employing means and methods or forms in the execution thereof
which tend to directly and specially ensure its execution, without risk to
himself arising from the defense which the offended party might make.29
Two conditions must concur in order for treachery to be appreciated,
namely: one, the assailant employed means, methods or forms in the
execution of the criminal act which give the person attacked no opportunity
to defend himself or to retaliate; and two, said means, methods or forms of
execution were deliberately or consciously adopted by the assailant.30
Treachery, whenever alleged in the information and competently and
clearly proved, qualifies the killing and raises it to the category of murder.31
Based on the established facts, Dulinand Batulan grappled for control of the
weapon Batulan had initially wielded against Dulin, who divested Batulan of
it and ran with it into the house of Danao, with Batulan in immediate
pursuit. They continued tograpple for the weapon inside the house of
Danao, and it was at that point when Dulin stabbed Batulan several times.
Under the circumstances, treachery should not be appreciated in the killing
of Batulan because the stabbing by Dulin did not take Batulan by surprise
due to his having been sufficiently forewarned of Dulin’s impending
assault,32 and being thus afforded the opportunity to defend himself, or to
escape, or even to recover control of the weapon from Dulin. The essence of
treachery is that the attack comes without warning, or is done in a swift,
deliberate and unexpected manner, affording the hapless, unarmed and
unsuspecting victim no chance to resist or to escape, without the slightest
provocation on the part of the victim.33 The mode of attack must not spring
from the unexpected turn of events.
Consequently, Dulin should be liable only for homicide, the penalty for
which is reclusion temporal.34 There being no aggravating or mitigating
circumstances, the penalty is imposed in its medium period (i.e., 14 years,
eight months and one day to 17 years and four months). The indeterminate
sentence of Dulin is, therefore, eight years and one day of prision mayor, as
the minimum, to 14 years, eight months and one day of reclusion temporal,
with full credit of his preventive imprisonment, if any.
Anent the civil liability, the CA ordered the accused to pay to the heirs of
Batulan ₱20,000.00 as temperate damages and ₱50,000.00 as moral
damages. We modify the awards, and grant to the heirs of Batulan
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and
₱25,000.00 as temperate damages. Indeed, the current judicial policy sets
the civil indemnity for death caused by a crime at ₱50,000.00. In addition,
the heirs of the victim are entitled to moral damages of ₱50,000.00. The civil
indemnity and moral damages are allowed even without allegation and
proof, it being a certainty that the victim’s heirs were entitled thereto as a
matter of law. Temperate damages of ₱25,000.00 should further be granted
to the heirs of the victim for they were presumed to have spent for his
interment. It would be unjust to deny them this amount for the reason that
they were not able to establish the actual expenditure for his interment
with certainty.35
16 | P a g e
In line with recent jurisprudence,36 interest of 6% per annum shall be
charged on all the items of the civil liability fixed and imposed herein,
computed from the date of the finality of this decision until the items of the
civil liability shall be fully paid.

WHEREFORE, the Court MODIFIES the judgment promulgated on August 26,

2005 by finding ALFREDO DULIN YNARAG guilty beyond reasonable doubt of
HOMICIDE, and SENTENCES him to suffer the indeterminate sentence of
EIGHT YEARS AND ONE DAY OF PRISION MAYOR, AS THE MINIMUM, TO 14
YEARS, EIGHT MONTHS AND ONE DAY OF RECLUSION TEMPORAL, with full
credit of his preventive imprisonment; ORDERS him to pay to the heirs of
Francisco Batulan ₱50,000.00 as civil indemnity, ₱50,000.00 as moral
damages, and ₱25,000.00 as temperate damages, plus interest of 6% per
annum on each item reckoned from the finality of this decision until full
payment; and DIRECTS him to pay the costs of suit.

SO ORDERED.

17 | P a g e
GARY FANTASTICO and ROLANDO VILLANUEVA, Petitioners,
vs.
ELPIDIO MALICSE, SR. and PEOPLE OF THE PHILIPPINES, Respondents.
PERALTA, J.:nj
For this Court's consideration is the Petition for Review on Certiorari1 under
Rule 45 of the 1997 Rules of Civil Procedure, dated January 20, 2010, of
petitioners Gary Fantastico and Rolando Villanueva assailing the Decision2
dated August 31, 2007 and Resolution3 dated January 7, 2010 of the Court
of Appeals (CA) in CA-G. R. CR. No. 31719, affirming the Decision4 dated
March 31, 2008 of the Regional Trial Court, Branch 11, Manila, in Criminal
Case No. 93-127049, finding petitioners guilty of attempted murder.
The following are the antecedents:
On the afternoon of June 27, 1993, Elpidio Malicse, Sr. (Elpidio) was outside
the house of his sister Isabelita Iguiron (Isabelita) in Pandacan, Manila when
all of a sudden, he heard Isabelita's son, Winston, throwing invectives at
him. Thus, Elpidio confronted Isabelita but she also cursed him, which
prompted the former to slapthe latter. On that occasion, Elpidio was under
the influence of alcohol.
The Barangay Chairman heard what transpired and went to the place where
the commotion was taking place inorder to pacify those who were involved.
Elpidio was eventually persuaded to go home where he drank some coffee.
Thereafter, Elpidio went back to the house of Isabelita to offer
reconciliation. On his way there, he passed by the house of Kagawad Andy
Antonio and requested the latter to accompany him, but was instead told to
go back home, leaving Elpidio to proceed alone.
Upon reaching Isabelita's house, Elpidio saw the former's son, Titus Iguiron
(Titus) and her son-in-law Gary Fantastico (Gary) and asked the two where
he can find their parents. Titus and Gary responded, "putang ina mo, and
kulit mo, lumayas ka, punyeta ka."
In his anger with the response of Titus and Gary, Elpidio kicked the door
open and saw Isabelita's elder son, Salvador Iguiron (Salvador) behind the
door holding a rattan stick or arnis. Salvador hit Elpidio on the right side of
his head that forced the latter tobow his head but Salvador delivered a
second blow that hit Elpidio on the right eyebrow. Salvador attempted to hit
Elpidio for the third time but the latter got hold of the rattan stick and the
two wrestled on the floor and grappled for the possession of the same
rattan stick. Then Titus ran towards the two and sprayed something on
Elpidio's face. Not being able to free himself from the clutches of Salvador
and to extricate himself, Elpidio bit Salvador's head.
Gary hit Elpidio on the right side of his head with a tomahawk axe when the
latter was about to go out of the house. Elpidio tried to defend himself but
was unable to take the tomahawk axe from Gary. Elpidio walked away from
Titus but Gary, still armed with the tomahawk axe and Salvador, with
hisarnis, including Titus, chased him.
Roland (Rolly) Villanueva, without any warning, hit Elpidio on the back of his
head with a lead pipe which caused the latter to fall on the ground. Elpidio
begged his assailants tostop, but to no avail. Salvador hit him countless
times on his thighs, legsand knees using the rattan stick.
While he was simultaneously being beaten up by Salvador, Titus, Gary, Rolly,
Nestor, Eugene and Tommy, he tried to cover his face with his arm. Gary hit
him with the tomahawk axe on his right leg, between the knees and the
ankle of his leg, which caused the fracture on his legs and knees. Rolly hit
Elpidio's head with a lead pipe, while Tommy hit him with a piece of wood
on the back of his shoulder.
Thereafter, a certain "Mang Gil" tried to break them off but Titus and Gary
shouted at him: "Huwag makialam, away ng mag-anak ito" and the two
continued to maul Elpidio. The people who witnessed the incident shouted
"maawa na kayo" but they only stopped battering him when a bystander
fainted because of the incident. Elpidio then pretended to be dead. It was
18 | P a g e
then that concerned neighbors approached him and rushed him to the
emergency room of the Philippine General Hospital (PGH).
Thus, a case for Attempted Murder under Article 248, in relation to Article 6
of the Revised Penal Code, was filed against Salvador Iguiron, Titus Malicse
Iguiron, Saligan Malicse Iguiron, Tommy Ballesteros, Nestor Ballesteros,
Eugene Surigao and petitioners Gary Fantastico and Rolando Villanueva. The
Information reads:
That on or about June 27, 1993, in the City of Manila, Philippines, the said
accused conspiring and confederating together and helping one another, did
then and there willfully, unlawfully and feloniously, with intent to kill and
with treachery and taking advantage of superior strength, commence the
commission of the crime ofmurder directly by overt acts, to wit: by then and
there hitting the head of Elpidio Malicse, Sr. y de Leon with a piece of
rattan, axe, pipe and a piece of wood and mauling him, 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 causes other than their
own spontaneous desistance, that is, the injuries inflicted upon Elpidio
Malicse, Sr. y de Leon are not necessarily mortal.
They all pleaded "not guilty." The defense, during trial, presented the
following version of the events that transpired:
Around 4:30 p.m. of June 27, 1993, Salvador was at the second floor of their
house when he heard his tenth son Winston crying while the latter was
being castigated by Elpidio. He went down and told Elpidio to come back the
next day to settle. His wife Isabelita called the Barangay Chairman two
blocks away. Barangay Chairman Joseph Ramos and Elpidio's wife and
daughter went to the house and Elpidio was given warm water, but he
showered his daughter and Winston withit. Elpidio was brought to his house
and the former told the Barangay Chairman that it was a family problem.
Elpidio went back to the house of Salvador where Titus was sitting on the
sofa. Elpidio asked Titus to open the door until the former kicked the door
open. Titus escaped through the open door and Salvador went out of the
house because another child was on the roof, afraid that the said child
might fall. Thereafter, Elpidio went to the street.
According to petitioner Gary Fantastico, he was inside their house with his
wife and Titus when the incident occurred. He and his wife ran upstairs,
while Titus went out when Elpidio hit the door. Elpidio had a reputation for
hurting people when drunk and Gary learned that Elpidio was brought to
the hospital because he was mauled by the people.
During trial, one of the accused, Salvador Iguiron died. Eventually, the trial
court, in a Decision dated March 31, 2008, acquitted Titus Iguiron, Saligan
Iguiron and Tommy Ballesteros but found Gary Fantastico and Rolando
Villanueva guilty beyond reasonable doubt for Attempted Murder. The
dispositive portion of the said decision reads:
WHEREFORE, the foregoing premises considered, the Court finds Gary
Fantastico and Rolando Villanueva GUILTY of the crime of attempted
murder and sentences them to an indeterminate penalty of imprisonment
of eight (8) years and one(1) day as minimum, to ten (10) years as
maximum. They are also ordered to pay the actual damages of ₱17,300.00
and moral damages of ₱10,000.00.
Accused Titus Iguiron, Saligan Iguiron and Tommy Ballesteros ACQUITTED.
SO ORDERED.
After their motion for reconsideration was denied, petitioners appealed the
case to the CA, but the latter court affirmed the decision of the RTC and
disposed the case as follows: WHEREFORE, finding no reversible error in the
decision appealed from, we hereby AFFIRM the same and DISMISS the
instant appeal.
SO ORDERED.
A motion for reconsideration was filed, but it was denied by the same court.
19 | P a g e
Hence, the present petition.
Petitioners stated the following arguments:
THE CONCLUSIONS DRAWN BY THE COURT OF APPEALS AND THE TRIAL
COURT FROM THE FACTS OF THE CASE ARE INCORRECT.
THE INFORMATION ITSELF IN THIS CASE DOES NOT ALLEGE ALL THE
ELEMENTS AND THE NECESSARY INGREDIENTS OF THE SPECIFIC CRIME OF
ATTEMPTED MURDER. NOT ALL OF THE ELEMENTSOF ATTEMPTED MURDER
ARE PRESENT IN THIS CASE. THERE IS NO TREACHERY OR ANY OTHER
QUALIFYING CIRCUMSTANCE TO SPEAK OF IN THIS CASE.
THE LOWER COURT AND THE COURT OF APPEALS FAILED TO CONSIDER THE
PRESENCE OF MITIGATING CIRCUMSTANCES.
THERE ARE MANIFEST MISTAKES IN THE FINDINGS OF FACTS BY THE COURT
OF APPEALS AND THE TRIAL COURT.
THE CONVICTION OF THE PETITIONERS WAS BASED ON THE WEAKNESS OF
THE DEFENSE EVIDENCE, NOT ON THE STRENGTH OF THE PROSECUTION
EVIDENCE.
THE TESTIMONY OF THE RESPONDENT THAT IT WAS THE PETITIONERS WHO
ATTACKED HIM IS INDEED UNCORROBORATED AND THUS SELF-SERVING.
CLEARLY, THERE ARE SO MUCH REVERSIBLE ERRORS IN THE DECISION OF
THE COURT OF APPEALS AND THE LOWER COURT THAT INJURIOUSLY
AFFECTED THE SUBSTANTIAL RIGHTS OF THE PETITIONERS AND THESE
SHOULD BE CORRECTED BY THIS HONORABLE COURT.
At the outset, it bears stressing that under the Rules of Court, an appeal by
certiorari to this Court should only raise questions of law distinctly set forth
in the petition.5
In the present case, the issuesand arguments presented by the petitioners
involve questions of facts. Therefore, the present petition is at once
dismissible for its failure to comply with the requirement of Rule 45 of the
Rules of Court, that the petition should only raise questions of law. The
distinction between a "question of law" and a "question of fact" is settled.
There is a "question of law" when the doubt or difference arises as to what
the law is on a certain state offacts, and which does not call for an
examination of the probative value of the evidence presented by the
parties- litigants. On the other hand, there is a "question of fact" when the
doubt or controversy arises as to the truth or falsity of the alleged facts.
Simply put, when there is no dispute as to fact, the question of whether or
not the conclusion drawn therefrom is correct, is a question of law.6
At any rate, the arguments of herein petitioners deserve scant
consideration.
It is the contention of the petitionersthat the Information filed against them
was defective because it did not state all the elements of the crime charged.
However, a close reading of the Information would show the contrary. The
Information partly reads:
x x x but the said accused did not perform all the acts of the execution which
should have produced the crime of murder, as a consequence, by reason of
causes other than their own spontaneous desistance, that is, the injuries
inflicted upon Elpidio Malicse, Sr. y de Leon are not necessarily mortal.
From the above-quoted portion of the Information, it is clear that all the
elements of the crime of attempted murder has been included.
The last paragraph of Article 6 of the Revised Penal Code defines an attempt
to commit a felony, thus:
There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution
20 | P a g e
which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance.7
The essential elements of an attempted felony are as follows:
The offender commences the commission of the felony directly by overt
acts;
He does not perform all the acts of execution which should produce the
felony;
The offender's act be not stopped by his own spontaneous desistance;
The non-performance of all acts ofexecution was due to cause or accident
other than his spontaneous desistance.8
The first requisite of an attempted felony consists of two (2) elements,
namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be
committed.9
The Court in People v. Lizada10 elaborated on the concept of an overt or
external act, thus:
An overt or external act is defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles
nor bythe spontaneous desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. The raison d'etre for the law
requiring a direct overt act is that, in a majority of cases, the conduct of the
accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is
that quality ofbeing equivocal that must be lacking before the act becomes
one which may be said to be a commencement of the commission of the
crime, or an overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the accused is. It is
necessary that the overt act should have been the ultimate step towards the
consummation of the design. It is sufficient if it was the "first or some
subsequent step in a direct movement towards the commission of the
offense after the preparations are made." The act done need not constitute
the last proximate one for completion. It is necessary, however, that the
attempt must have a causal relation to the intended crime. In the words of
Viada, the overt acts must have an immediate and necessary relation to the
offense.11
Petitioners question the inclusion of the phrase "not necessarily mortal" in
the allegations in the Information. According to them, the inclusion of that
phrase means that there is an absence of an intent to kill on their part.
Intent to kill is a state of mind that the courts can discern only through
external manifestations, i.e., acts and conduct of the accused at the time of
the assault and immediately thereafter. In Rivera v. People,12 this Court
considered the following factors to determine the presence of an intent to
kill: (1) the means used by the malefactors; (2) the nature, location, and
number of wounds sustained by the victim; (3) the conduct of the
malefactors before, at the time, or immediately after the killing of the
victim; and (4) the circumstances under which the crime was committed and
the motives of the accused. This Court also considers motive and the words
uttered by the offender at the time he inflicted injuries on the victim as
additional determinative factors.13 All of these, were proven during the
trial. Needless to say, with or without the phrase, what is important is that
all the elements of attempted murder are still alleged in the Information.
Section 6, Rule 110 of the Rules on Criminal Procedure states:
Sec. 6. Sufficiency of complaint or information. – A complaint or information
is sufficient if it states the name of the accused; the designation of the
21 | P a g e
offense by the statute; the acts or omissions complained of as constituting Q. Why did you know that the ax blade of the tom was dull? (sic)
the offense; the name of the offended party; the approximate time of the
commission of the offense; and the place wherein the offense was A. I also used that.
committed.
Q. Where do you usually keep that in the house of Iguiron?
In any case, it is now too late for petitioners to assail the sufficiency of the
Information on the ground that the elements of the crime of attempted A. In the kitchen.
murder are lacking. Section 9, Rule 117 of the Rules of Court provides:
Q. How far is that kitchen from where Gary emerged from?
SEC. 9. Failure to move to quash or to allege any ground therefor.- The
failure of the accused to assert any ground of a motion to quash before he A. He is right in the kitchen.
pleads to the complaint or information, either because he did not file a
motion to quash or failed to allege the same in said motion, shall be Q. Then what happened?
deemed a waiver of any objections except those based on the grounds
provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. A. When I was able to free myself from Salvador, Gary Iguiron was hiding in
the kitchen door and holding a tomhack(sic) whose edge is dull and he hit
Anent the probative value and weight given to the testimony of Elpidio by me on my right side and my headand I got injury (sic) and blood profusely
the CA and the RTC, the same is not ridden with any error. In People v. oozing, I want to get hold of the tomhawk (sic).
Alvarado,14 we held that greater weight is given to the positive
identification of the accused by the prosecution witness than the accused's Q. Were you able to get of the tomhawk (sic) from Gary?
denial and explanation concerning the commission of the crime. This is so
inasmuch as mere denials are self-serving evidence that cannot obtain A. No sir.16
evidentiary weight greater than the declaration of credible witnesses who
testified on affirmative matters.15 xxxx

It is clear from the records that Elpidio was able to make a positive Q. You said while on that street somebody hit you from behind, who was
identification of the petitionersas the assailants, thus: that?

Q. Then what happened next Mr. Witness? A. Rolly Villanueva.

A. When I was able to free myself from Salvador Iguiron, I got out of the Q. Why do you say that it was Rolly Villanueva, considering that it was hit
door of the house, then, I saw Gary was hiding in the kitchen door holding from behind?
an axe. Tonahawk with blade of ax was dull and had a handle of one foot,
with the diameter of one inch. A. Because they were about 5 of them at the main gate of the compound.

22 | P a g e
Q. Who are they?
A. Rolando Villanueva, Nestor Ballesteros, Tommy Ballesteros, Eugene
Surigao, Saligan Iguiron.
Q. You said you were hit by Rolando from behind, do you have occasion to
see first before you were hit?
A. When I was hit I fell down and I was able to see who hit (sic), I saw him.
Q. When you fell down, you were able to realize it was Rolando Villanueva
who hit you, you mean you realized what he used in hitting you from
behind?
A. It was a pipe. 1/2 inch thick, 24 inches in length.
Q. You said you fell down because of the blow of Rolando Villanueva and
you saw him holding that pipe, how was he holding the pipe when you saw
him?
A. When I fell down he was about trying to hit me again.17
In connection therewith, one must not forget the well entrenched rule that
findings of facts of the trial court, its calibration of the testimonial evidence
of the parties as well as its conclusion on its findings, are accorded high
respect if not conclusive effect. This is because of the unique advantage of
the trial court to observe, at close range, the conduct, demeanor and
deportment of the witness as they testify.18 The rule finds an even more
stringent application where the said findings are sustained by the Court of
Appeals.19
It is also of utmost significance that the testimony of Elpidio is corroborated
by the medico-legal findings as testified by Dr. Edgar Michael Eufemio, PGH
Chief Resident Doctor of the Department of Orthopedics. He testified as to
the following:
Q. And as head of that office, Mr. Witness, why are you here today?
A. Actually, I was called upon by the complainant to rectify regarding, the
findings supposedly seen when he was admitted and when I saw him in one
of the sessions of our Out Patient Department.
Q. When was this follow-up session at your department did you see this
complainant?
A. Based on the chart, I think it was four (4) months post injury when I first
saw the patient.
Q. Why does he has (sic) to makea follow up in your department?
A. Based on this chart, he sustained bilateral leg fractures which
necessitated casting. Normally, casting would take around three (3) months
only but since the nature of his fracture was relatively unstable, I think it
necessitated prolong immobilization in a case.
PROSECUTOR TEVES:
Q. Did you personally attend on his needs on that date when you saw him?
A. Yes, ma'am.
Q. And what could have been the cause of these injuries he sustained? A. I
think one of his leg has close fracture, meaning, probably it was caused by a
blunt injury rather than a hacking injury, one on the left side, with an open
wound which was very much compatible with a hack at the leg area.20
Petitioners also claim that the prosecution was not able to prove the
presence of treachery or any other qualifying circumstance.
23 | P a g e
In this particular case, there was no treachery. There is treachery when the
offender commits any of the crimes against persons, employing means,
methods, or forms in the execution, 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 comes without a warning and ina swift, deliberate, and unexpected
manner, affording the hapless, unarmed, and unsuspecting victim no chance
to resist or escape. For treachery tobe considered, two elements must
concur: (1) the employment of means of execution that gives the persons
attacked no opportunity to defend themselves or retaliate; and (2) the
means of execution were deliberately or consciously adopted.21 From the
facts proven by the prosecution, the incident was spontaneous, thus, the
second element of treachery is wanting. The incident, which happened at
the spur of the moment, negates the possibility that the petitioners
consciously adopted means to execute the crime committed. There is no
treachery where the attack was not preconceived and deliberately adopted
but was just triggered by the sudden infuriation on the partof the accused
because of the provocative act of the victim.22
The RTC, however, was correct in appreciating the qualifying circumstance
of abuse of superior strength, thus:
In the case at bar, the prosecution was able to establish that Salvador
Iguiron hit Elpidio Malicsi, Sr. twice on the head as he was entered (sic) the
house of the former. Gary Fantastico hit the victim on the right side of the
head with an axe or tomahawk. The evidence also show that Rolando
"Rolly" Villanueva hit the victim on the head with a lead pipe. And outside
while the victim was lying down, Gary hit the legs of the victim with the
tomahawk. lvador also hit the victim with the rattan stick on the thighs, legs
and knees. And Titus Iguiron hit the victim's private organ with a piece of
wood. The Provisional Medical Slip (Exh. "D"), Medico Legal Certificate and
Leg Sketch (Exh. "D-2") and the fracture sheet (Exh. "D-4") all prove that the
victim suffered injuries to both legs and multiple lacerations on his head.
The injury on one leg which was a close fracture was caused by a blunt
instrument like a piece of wood. This injury was caused by Salvador Iguiron.
The other leg suffered an open fracture caused by a sharp object like a large
knife or axe. This was caused by Gary Fantastico who used the tomahawk or
axe on the victim. The multiple lacerations on the head were caused by
Gary, Rolly and Salvador as it was proven that they hit Elpidio on the head.
There is no sufficient evidence that the other, accused, namely Saligan
Iguiron Y Malicsi, Tommy Ballesteros, Nestor Ballesteros and Eugene Surigao
harmed or injured the victim. Titus having sprayed Elpidio with the tear gas
is not sufficiently proven. Neither was the alleged blow by Titus, using a
piece of wood, on the victim's private organ sufficiently established as the
medical certificate did not show any injury on that part of the body of the
victim.
The said injuries inflicted on the complainant after he went back to his sister
Isabelita's house.1âwphi1 Whenhe kicked the door, the melee began. And
the sequence of the injuries is proven by victim's testimony. But it was a
lopsided attack as the victim was unarmed, while his attackers were all
armed (rattan stick, tomahawk and lead pipe). And the victim was also
drunk. This establishes the element of abuse of superior strength. The
suddenness of the blow inflicted by Salvador on Elpidio when he entered
the premises show that the former was ready to hit the victim and was
waiting for him to enter. It afforded Elpidio no means to defend himself.
And Salvador consciously adopted the said actuation. He hit Elpidio twice on
the head. Treachery is present in this case and must be considered an
aggravating circumstance against Salvador Iguiron. Rolly Villanueva, Gary
Fantastico and Salvador Iguiron were all armed while Elpidio, inebriated,
had nothing to defend himself with. There is clearly present here the
circumstance of abuse of superior strength.23 (Emphasis supplied)
Abuse of superior strength is present whenever there is a notorious
inequality of forces between the victim and the aggressor, assuming a
situation of superiority of strength notoriously advantageous for the
aggressor selected or taken advantage of by him in the commission of the
crime."24 "The fact that there were two persons who attacked the victim
does not per se establish that the crime was committed with abuse of
superior strength, there being no proof of the relative strength of the
24 | P a g e
aggressors and the victim."25 The evidence must establish that the
assailants purposely sought the advantage, or that they had the deliberate
intent to use this advantage.26 "To take advantage of superior strength
means to purposely use excessive force out of proportion to the means of
defense available to the person attacked."27 The appreciation of this
aggravating circumstance depends on the age, size, and strength of the
parties.28
minimum, to eight (8) years and one (1) day of prision mayor, as maximum.
Petitioners are also ORDERED to pay Pl 7,300.00 as actual damages, as well
as Pl 0,000.00 moral damages as originally ordered by the RTC. In addition,
interest is imposed on all damages awarded at the rate of six percent (6%)
per annum from date of finality of judgment until fully paid.
SO ORDERED.

Anent the penalty imposed by the RTC and affirmed by the CA, which is an
indeterminate penalty of eight (8) years and one (1) day as minimum, to ten
(10) years as maximum and ordered them to pay actual damages of
₱17,300.00 and moral damages of ₱10,000.00, this Court finds an obvious
error.

For the crime of attempted murder, the penalty shall be prision mayor,
since Article 51 of the Revised Penal Code 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.29 Under the
Indeterminate Sentence Law, the maximum of the sentence shall be that
which could be properly imposed in view of the attending circumstances,
and the minimum shall be within the range of the penalty next lower to that
prescribed by the Revised Penal Code. 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. Therefore, the penalty imposed
should have been imprisonment from six (6) years of prision correccional, as
minimum, to eight (8) years and one (1) day of prision mayor, as maximum.
WHEREFORE, the Petition for Review on Certiorari dated January 20, 2010
of petitioners Gary Fantastico and Rolando Villanueva is hereby DENIED.
Consequently, the Decision dated August 31, 2007 and Resolution dated
January 7, 2010 of the Court of Appeals are hereby AFFIRMED with the
MODIFICATION that the petitioners are sentenced to an indeterminate
penalty of imprisonment from six ( 6) years of prision correccional, as
25 | P a g e