Ocampo y Atilano v. People

SECOND DIVISION

[G.R. No. 242911. March 11, 2019.]

FERDINAND OCAMPO Y ATILANO, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a Resolution dated 11 March 2019which reads as follows:

"G.R. No. 242911 — Ferdinand Ocampo y Atilano v. People of the Philippines

This Petition for Review on Certiorari 1 assails the Decision 2 dated June 29, 2018 and Resolution dated October 23, 2018 of the Court of Appeals (CA) in CA-G.R. CR No. 40218 which affirmed the Decision 3 dated January 6, 2017 of the Regional Trial Court (RTC), Branch 45, Manila, in Crim. Case No. 04-229119 with modification as to the penalty imposed and the damages awarded.

Petitioner Ferdinand Ocampo y Atilano (Ocampo) was charged in an Information for the crime of Homicide under Article 249 of the Revised Penal Code (RPC), the accusatory portion of which reads:

That on or about August 2, 2004, in the City of Manila, Philippines, the said accused, conspiring and confederating with others whose true names, real identities and present whereabouts are still unknown and helping one another, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon one RODANTE AGAPITO y HILARIO, by then and there boxing the latter causing him to fall down on the pavement hitting his head thereat, thereby inflicting upon the said RODANTE AGAPITO y HILARIO mortal wounds which were the direct and immediate cause of his death thereafter.

Contrary to law. 4

Ocampo pleaded not guilty. During the trial, the prosecution presented Leo Agapito y De Leon (Leo), the son of the victim Rodante Agapito y Hilario, who testified that he saw several persons, including Ocampo, mauling his father. He testified that Ocampo punched his father and hit the latter with a bottle at the back portion of his head. Thereafter, Leo's father fell to the ground. His father was later on brought to the hospital, but subsequently expired due to massive subdural hemorrhage, secondary to blunt trauma. The Medico Legal Officer testified that the hemorrhage was the result of the hitting of the victim's head with a blunt object, such as a bottle. The victim's wife finally testified on the amount of actual damages incurred. CAIHTE

Against these, Ocampo interposed the defense of denial.

On January 6, 2017, the RTC issued its Decision finding Ocampo guilty beyond reasonable doubt for the crime of Homicide. The RTC gave credence to Leo's testimony that Ocampo inflicted a fatal injury on the victim by hitting the latter with a bottle on the nape as confirmed by the findings of the Medico Legal Officer.

The RTC thus disposed:

WHEREFORE, premises considered, this Court finds accused Ferdinand Ocampo y Atilano guilty beyond reasonable doubt for Homicide and causing the death of Rodante Agapito y [Hilario] in violation of Article 249 of the Revised Penal Code. The prosecution has proven the elements of the offense as laid down in the Information dated August 6, 2004 in the above-captioned case. Having found him guilty of violating Article 249 of the Revised Penal Code, accused Ferdinand Ocampo y Atilano is sentenced to suffer an indeterminate penalty of twelve (12) years and one (1) day of reclusion temporal as minimum to fourteen (14) years and eight (8) months of reclusion temporal as maximum.

Further, the accused is ordered to pay actual damages in the amount of P62,043.50 and temperate damages in the amount of P50,000.00 to the heirs of the deceased, Rodante Agapito y [Hilario].

SO ORDERED. 5 (Emphasis in the original)

Consequently, Ocampo appealed to the CA.

In its presently assailed Decision dated June 29, 2018, the CA affirmed with modification the ruling of the RTC by modifying the penalty imposed and the amount of damages awarded.

The CA held that there was no reason to depart from the findings of the trial court as, through Leo's testimony, the prosecution established the manner how the crime unfolded. It noted that Leo straightforwardly testified that Ocampo punched the victim and inflicted the fatal blow when the latter hit the back portion of the victim's head with the bottle. This testimonial account was also confirmed by the physical evidence showing that the immediate cause of the victim's death was subdural and subarachnoid hemorrhage, massive, secondary to alleged blunt impact object.

As regards Leo's testimony that Ocampo hit the back of the victim's head with a bottle which allegedly was not contained in the affidavit which Leo had earlier executed, the CA held that the same did not impair Leo's credibility, and that, as between an affidavit executed outside the court and a testimony given in open court, the latter almost always prevails.

Anent the penalty to be imposed, the CA disregarded Ocampo's contention that two mitigating circumstances, i.e., "lack of intention to commit so grave a wrong" and "provocation on the part of the offended party" should be appreciated in his favor for lack of factual and legal bases.

Thus, the CA concluded that in the absence of mitigating or aggravating circumstance, the maximum penalty shall be reclusion temporal in its medium period which ranges from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Applying the indeterminate sentence law, the minimum penalty shall be taken from the range of prision mayor in any of its period or from six (6) years and one (1) day to twelve (12) years.

In addition to the award of actual damages in the amount of P62,043.50 representing funeral and burial expenses duly evidenced by receipts, the CA likewise imposed civil indemnity, moral damages and temperate damages, in the amount of P50,000.00 each.

In disposal, the CA held:

WHEREFORE, premises considered, the appeal is DENIED. The Decision dated 6 January 2017 of the Regional Trial Court of Manila, Branch 45 in Crim. Case No. 04-229119 is hereby AFFIRMED with MODIFICATION in so far as accused-appellant Ferdinand Ocampo y Atilano is sentenced to an indeterminate penalty of [sic] Eight (8) years and One (1) day of prision mayor as minimum to Fourteen (14) years, Eight (8) months and One (1) day of reclusion temporal as maximum. HEITAD

Aside from the award of actual damages in the amount of P62,043.50 and temperate damages in the amount of P50,000.00, accused-appellant is ordered to pay the heirs of the victim: (1) Fifty Thousand Pesos (Php50,000.00) as civil indemnity; and (2) Fifty Thousand Pesos (Php50,000.00) as moral damages, plus Six percent (6%) interest per annum on all damages awarded from finality of this Decision until fully paid.

SO ORDERED.6 (Emphasis in the original)

Thus, Ocampo resorted to the instant petition.

In this petition, Ocampo imputes error on the part of the CA in affirming his conviction despite the alleged failure on the part of the prosecution to prove all the elements of the crime charged and the inconsistent testimony of Leo.

We find no error on the part of the CA in affirming the RTC's finding that Ocampo is guilty beyond reasonable doubt of the crime of homicide. Consequently, the petition should be denied. The award of temperate damages, however, must be deleted considering that actual damages is already awarded.

To begin with, the issues herein raised are factual in nature. The rule is that factual findings of the trial court, when adopted and confirmed by the CA, are binding and conclusive on this Court and save for certain exceptions, none of which are obtaining in this case, will not be reviewed on appeal. Here, Ocampo failed to present any cogent reason warranting a deviation from the CA ruling which affirmed the RTC's factual finding that Ocampo is guilty of homicide.

Even a review on the merits of Ocampo's arguments fails to persuade. The crime of Homicide is defined and penalized under Article 249 of the RPC, which reads:

Art. 249. Homicide. — Any person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.

The elements of Homicide are the following: (a) a person was killed; (b) the accused killed him without any justifying circumstance; (c) the accused had the intention to kill, which is presumed; and (d) the killing was not attended by any of the qualifying circumstances of Murder, or by that of Parricide or Infanticide. 7

The evidence in this case, consisting of Leo's testimonial account and the autopsy report, clearly established that Ocampo punched the victim at his right jaw and then hit him with a bottle at his nape which thereafter, caused the victim to fall on the pavement. Ocampo was clearly identified by Leo as the one who assaulted the victim. The proximate cause of the victim's death was confirmed by the autopsy report stating that the massive hemorrhage sustained by the victim was caused by being hit on the head by a blunt object, such as a bottle. The nexus between the injury sustained by the victim and his death was clearly established. The CA, therefore, correctly appreciated that Ocampo's act of mauling the victim and hitting his head with the bottle caused the victim's death, and as such, he should be held criminally liable for the crime of Homicide.

We also agree with the CA that the alleged inconsistency between Leo's affidavit and his testimony in open court does not affect his credibility as it does not detract from the fact that Leo saw and identified Ocampo as the assailant of his father. In People v. Yanson, 8 we ruled that:

x x x the alleged inconsistencies between the testimony of a witness in open court and his sworn statement before the investigators are not fatal defects to justify a reversal of judgment. Such discrepancies do not necessarily discredit the witness since ex parte affidavits are almost always incomplete. A sworn statement or an affidavit does not purport to contain a complete compendium of the details of the event narrated by the affiant. Sworn statements taken ex parte are generally considered to be inferior to the testimony given in open court. ETHIDa

The mitigating circumstances claimed by Ocampo were also correctly disallowed by the CA. Praeter intentionem can be taken into account only when the facts show that the means employed is notably and evidently disproportionate with the consequence. Ocampo could not argue that he had not intended to commit so grave a wrong as he knew or should have known that a blow to the nape with a glass bottle would have a lethal effect upon the victim. Neither can Ocampo successfully claim sufficient provocation on the part of the offended party. Sufficient means adequate to excite a person to commit the wrong and must accordingly be proportionate to its gravity. 9 The victim's alleged insistence in joining the cara y cruz game and hurling invectives are hardly proportionate to Ocampo's act of mauling the former.

There being no generic aggravating or mitigating circumstances, the maximum penalty of the term of imprisonment was correctly fixed by the CA at reclusion temporal in its medium period. Applying the indeterminate sentence law, the minimum penalty was likewise correctly taken from the range of prision mayor.

The award for civil indemnity and moral damages in the amounts of P50,000.00 each are likewise affirmed as it is consistent with present policy. 10 However, the award for temperate damages must be deleted. In People v. Racal, 11 we reiterated the rule that "when actual damages proven by receipts during the trial amount to less than the sum allowed by the Court as temperate damages, the award of temperate damages is justified in lieu of actual damages which is of a lesser amount. Conversely, if the amount of actual damages proven exceeds, then temperate damages may no longer be awarded; actual damages based on the receipts presented during trial should instead be granted." Here, the CA affirmed the RTC's award of actual damages in the amount of P62,043.50, duly proven by receipts, the additional award of temperate damages thus no longer finds justification.

WHEREFORE, premises considered, the petition is DENIED. ACCORDINGLY, the Decision dated June 29, 2018 and the Resolution dated October 23, 2018 of the Court of Appeals in CA-G.R. CR No. 40218 are AFFIRMED with MODIFICATION. The award of temperate damages in the amount of P50,000.00 is DELETED. cSEDTC

SO ORDERED."

Very truly yours,

MARIA LOURDES C. PERFECTODivision Clerk of Court

By:

(SGD.) TERESITA AQUINO TUAZONDeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 12-28.

2. Penned by Associate Justice Jhosep Y. Lopez, concurred in by Associate Justices Japar B. Dimaampao and Manuel B. Barrios; id. at 32-41.

3. Penned by Acting Presiding Judge Jose Lorenzo R. Dela Rosa; id. at 65-69.

4.Id. at 65.

5.Id. at 68-69.

6.Id. at 40-41.

7.Wacoy v. People of the Philippines, 760 Phil. 570, 578 (2015).

8. 674 Phil. 169, 180 (2011), citing Mercado v. People, 615 Phil. 434 (2009).

9.People v. Nabora, 73 Phil. 434, 435 (1941).

10.People v. Jugueta, 783 Phil. 806 (2016).

11. G.R. No. 224886, September 4, 2017.