People v. Brazil y Abad

FIRST DIVISION

[G.R. No. 218081. * November 11, 2021.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. VIRGILIO BRAZIL y ABAD, accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedNovember 11, 2021which reads as follows:

"G.R. No. 218081(People of the Philippines, plaintiff-appellee, v. Virgilio Brazil y Abad, accused-appellant).

Before the Court is an appeal from the March 11, 2014 Decision 1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 05750, which affirmed the March 5, 2012 Decision 2 of the Regional Trial Court of Quezon City, Branch 219 (RTC) in Criminal Case No. Q-02-113683, finding Virgilio Brazil y Abad (accused-appellant) and accused Raul Ocampo, Jr. y Baltazar (Ocampo) guilty beyond reasonable doubt of Robbery with Homicide.

Antecedents

Accused-appellant and Ocampo were indicted for the special complex crime of robbery with homicide in an Information 3 dated November 26, 2002, the accusatory portion of which reads:

That on or about the 24th day of November 2002, in Quezon City, Philippines, the said accused, conspiring, confederating with one ILDEFONSO GRATELA II Y CASIA (now deceased) and mutually helping one another, with intent of gain, by means of force, violence and/or intimidation, did then and there willfully, unlawfully and feloniously rob one MARIFE AYSON-DUMADAG Y RUSIANA in the following manner, to wit: on the date and place aforementioned while complainant was walking along N. Domingo Street, Brgy. Valencia, this City, on her way to a nearby church, accused by means of conspiracy, who were on board a red Toyota Corona with plate No. NCY-627 suddenly alighted therefrom, and at gunpoint, forcibly grabbed, snatched, and carried away one (1) unit 3310 Nokia cellphone valued at P3,000.00 Philippine Currency, belonging to MARIFE AYSON-DUMADAG Y RUSIANA, to the damage and prejudice of said offended party; that on the occasion of said Robbery, accused sped-off towards the direction of Cubao resulting in a running gunbattle between accused and the apprehending police officers, as a result thereof, accused ILDEFONSO GRATELA II Y CASIA was shot and killed in the firefight, to the damage and prejudice of offended party, Marife Ayson-Dumadag y Rusiana.

CONTRARY TO LAW. 4

Upon arraignment, accused-appellant and Ocampo pleaded not guilty to the charge. Trial on the merits ensued thereafter.

Version of the Prosecution

The prosecution presented Marife Ayson-Dumadag (Marife), SPO2 Moises Tacdol (SPO2 Tacdol) and PO3 Rolando Amar (PO3 Amar) as its witnesses.

Marife narrated that on November 24, 2002 at around 6:00 a.m. while walking along N. Domingo Street, a red Toyota vehicle 5 passed by her and stopped. 6 A man (later identified as accused-appellant) wearing a white shirt, long pants and slippers, 7 got out of the said vehicle and asked "Miss, alam mo ba. . . ." Without finishing his statement, accused-appellant suddenly pulled out a gun and pointed the same at her stomach. He then demanded to hand over her cellular phone, a Nokia 3310, or else he will shoot her. Afterwards, he snatched the cellphone from Marife, ran towards the car and boarded it. 8

At that precise moment, SPO2 Tacdol and PO3 Amar were patrolling N. Domingo Street in Barangay Valencia, Quezon City. SPO2 Tacdol testified that they saw Marife screaming for help. When they approached her, Marife informed them that her cellphone was taken at gunpoint by accused-appellant who boarded the red Toyota vehicle. 9 They then instructed Marife to board the patrol car behind them while they chase after the red car. 10 While pursuing the suspect, those on board the red Toyota sedan fired upon them. 11 They continued chasing the subject vehicle until they reached Pasig City where there was an exchange of gunfire. The chase ended when the red car rammed into a parked van and hit a Meralco post. 12

SPO2 Tacdol and PO3 Amar alighted from their mobile and approached the subject vehicle. Accused-appellant, who was seated at the back, came out of the vehicle with his hand raised, while the one seated next to the driver seat (later identified as Ildefonso Gratela [Gratela]), was already dead. 13 SPO2 Tacdol arrested Ocampo, the driver, and confiscated from him a knife. 14 They were also able to recover Marife's cellphone and a caliber .38 5-shooter snub nose revolver from accused-appellant, and a caliber .38 6-shooter snub nose revolver from Gratela. 15

Version of the Defense

The defense witnesses consisted of accused-appellant, his co-accused Ocampo, and Trinidad Esguerra (Trinidad) who gave their respective versions of the incident.

Ocampo denied the charges and maintained that he was not one of those who robbed Marife. He narrated that on November 23, 2002, his friend hired him to drive a red car with plate no. NCY-627 going to Bicol. The said vehicle was owned by a certain Tatay Kotsi.

The following morning at around 6:00 a.m., after filling up the vehicle with gasoline, Ocampo parked along N. Domingo Street while Tatay Kotsi bought cigarettes at a nearby store. Upon hearing a gunshot, Tatay Kotsi hurriedly boarded the car and said "alisin mo dito, umalis na tayo dito." However, the police chased after them. He claimed that he continued driving out of fear that they will be in danger if he would stop. He also narrated that while driving in Pasig City, he was thrown through the windshield and lost consciousness due to a collision. When he regained consciousness, he was already inside a police mobile. Tatay Kotsi died due to the incident. 16 He also denied knowing accused-appellant, and that he only met the latter at the police station. 17

Accused-appellant also denied any involvement in the incident. He testified that in the early morning of November 17, 2002, a certain Rey Esguerra (Rey) requested him to accompany Trinidad (Rey's wife) in going to Maybunga Street, Pasig City, to look for and buy scrap metals. While he and Trinidad were walking along the stretch of Maybunga Street, he noticed that a red car appeared out of nowhere and hit a public utility jeepney. Thereafter, a police mobile stopped where a police officers came out and started shooting at the car. Upon hearing the gunshots, he ran for safety but SPO2 Tacdol ordered him to stop and threatened to shoot him. SPO2 Tacdol then ordered him to drop on the ground face down, and placed him in handcuffs. He then begged SPO2 Tacdol not to arrest him, but the same fell on deaf ears. Instead, SPO2 Tacdol grabbed him by the neck and made him ride the police mobile. He was then brought to Precinct 7 at Camp Panopio. 18

Accused-appellant further alleged that SPO2 Tacdol beat him up and took from his pocket the amount of P15,000.00 which Rey had earlier entrusted to him. After being detained for an hour, the police transferred him to Camp Karingal where he met Ocampo for the first time. 19 He also averred that he does not know Marife and saw her only for the first time at Camp Karingal. 20

Trinidad confirmed that accused-appellant accompanied her to look for a seller of scrap materials along Maybunga Street, Pasig City. She claimed that she pleaded to the police not to arrest accused-appellant since he was only accompanying her, but the police only told her to give her statement at the police station. Since she was still trying to make sense of what transpired, she did not proceed to the police station but instead informed accused-appellant's relatives of what had transpired. 21

Ruling of the RTC

On March 5, 2012, the RTC rendered its decision finding accused-appellant and Ocampo guilty as charged. The fallo of the said decision reads:

WHEREFORE, finding the accused VIRGILIO BRAZIL Y ABAD and RAUL OCAMPO, JR. y BALTAZAR guilty beyond reasonable doubt, they are hereby sentenced to suffer the penalty of RECLUSION PERPETUA, with both accused eligible for parole, pursuant to the provisions of the Revised Penal Code.

SO ORDERED. 22

The RTC held that the prosecution had satisfactorily proven all the elements of the special complex crime of robbery with homicide. It found that accused-appellant acted in conspiracy with Ocampo and Gratela to steal Marife's cellphone, and on the occasion thereof, Gratela died. It held that the nature of the offense will not be affected by the fact that one of the robbers was probably shot and killed by the police who were pursuing them.

As regards the defense of denial, the RTC rejected the same for being self-serving and unsupported by any plausible proof. The trial court nonetheless appreciated the presence of a mitigating circumstance that the accused had no intention to commit so grave a wrong as that committed pursuant to Article 13, paragraph 3 of the Revised Penal Code (RPC), and thereby imposed the penalty of reclusion perpetua with eligibility for parole.

Accused-appellant filed a motion for reconsideration, but the RTC denied the same in its Order dated July 10, 2012. Consequently, he appealed to the CA.

Ruling of the CA

On March 11, 2014, the CA rendered the now assailed decision, which decreed as follows:

WHEREFORE, in view of the foregoing premises, the appeal filed in this instant case is DENIED and the Regional Trial Court's Decision dated March 5, 2012 and the Order dated July 10, 2012 finding accused-appellant Virgilio Brazil y Abad, acting in conspiracy with one Raul Ocampo, Jr. y Baltazar, guilty beyond reasonable doubt of the crime of robbery with homicide are AFFIRMED.

SO ORDERED. 23

The CA agreed with the RTC that the prosecution had established the elements of robbery with homicide. The alleged inconsistencies or contradictions in the testimonies of the prosecution witnesses did not affect their credibility or the veracity of their testimonies considering that the said discrepancies merely pertained to minor or trivial matters.

The appellate court also concurred with the RTC that the crime is that of robbery with homicide even if the person killed was one of the robbers who was shot by a responding police officer. The appellate court pointed out that the term "homicide" as used in the special complex crime of robbery with homicide, is to be applied in its generic sense, without reference to whether or not it falls under the justifying circumstance enunciated under Art. 11, par. 5 of the RPC.

Accused-appellant filed a motion for reconsideration, but the CA denied his motion via its August 11, 2014 Resolution. 24

Issues

Unfazed, accused-appellant filed the present appeal, raising the same issues he previously submitted to the CA, viz.:

I

WHETHER OR NOT ACCUSED-APPELLANT WAS PART OF THE GROUP OF RAUL OCAMPO IN THE COMMISSION OF THE ALLEGED ROBBERY;

II

WHETHER OR NOT THERE IS ADMISSIBLE EVIDENCE TO SHOW THAT ACCUSED-APPELLANT WAS THE PERSON WHO TOOK THE CELLPHONE OF PRIVATE COMPLAINANT;

III

WHETHER OR NOT THE TRIAL COURT CAN CONSIDER IN EVIDENCE THE TESTIMONY OF PRIVATE COMPLAINANT NOTWITHSTANDING THE UNJUSTIFIED FAILURE OF THE SAME TO RETURN TO THE WITNESS STAND FOR THE COMPLETION OF HER CROSS-EXAMINATION;

IV

WHETHER OR NOT THE DEATH OF A ROBBER AT THE HANDS OF A POLICEMAN DURING A RUNNING GUN BATTLE CAN MAKE THE CRIME OF ROBBERY A COMPLEX CRIME OF ROBBERY WITH HOMICIDE;

V

WHETHER OR NOT THE ACCUSED-APPELLANT COULD BE LIABLE FOR THE DEATH OF ANOTHER ACCUSED LAWFULLY SHOT BY A POLICEMAN;

VI

WHETHER OR NOT THE PENALTY OF RECLUSION PERPETUA IS COMMENSURATE TO THE CRIME IMPUTED UPON ACCUSED-APPELLANT. 25

In the Resolution 26 dated July 6, 2015, the Court directed both parties to submit their supplemental briefs. On September 21, 2015, the prosecution, through the Office of the Solicitor General (OSG), filed its Manifestation and Motion 27 stating that it will no longer file a supplemental brief. On the other hand, accused-appellant filed a Supplemental Brief 28 on October 12, 2015.

Accused-appellant contends that the RTC erred in lending credence to Marife's testimonies considering that the defense was unable to complete its cross-examination. At any rate, he claims that her testimony and those of SPO2 Tacdol and PO3 Amar, were not only conflicting but also replete with inconsistencies. Accused-appellant also maintains his innocence based on People v. Manalili29 where the Court modified the conviction of the accused for the complex crime of "Attempted Robbery with Homicide" to "Attempted Robbery" because the deceased robber was not killed by his cohorts, but by a soldier. 30

The OSG however counters that despite Marife's failure to return to the witness stand, the defense had already cross-examined her on the material points of the case. Her testimony had been rescheduled and postponed several times without the fault of the prosecution or the witness herself. 31 As regards accused-appellant's conviction for the special complex crime of robbery with homicide, the OSG argues that the law did not distinguish as to who killed the victim in such a crime, as long as death resulted therefrom. 32

The Court's Ruling

The appeal is without merit.

Marife's testimony is admissible

Accused-appellant posits that he was denied due process and was unable to test the credibility of Marife's testimony when he failed to finish his cross-examination. 33 He claims that his counsel had only asked preliminary questions, and it was therefore error for the RTC to deny his motion to strike Marife's testimony because of her unjustified refusal to return to the witness stand despite notice.

The Court is not persuaded.

In People v. Escote, Jr., 34 the Court expounded that the right to cross-examine is a constitutional right anchored on due process. It is a statutory right found in Section 1 (f), Rule 115 of the Revised Rules of Criminal Procedure which provides that the accused has the right to confront and cross-examine the witnesses against him at the trial. The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross-examine if desired. 35 What is proscribed by statutory norm and jurisprudential precept is the absence of the opportunity to cross-examine. 36

It cannot be gainsaid that herein accused-appellant was not afforded the opportunity to confront Marife on her testimony, as in fact, he had conducted a cross-examination on April 24, 2003 and even asked for a continuation. 37 Verily, there can be no merit in his claim that he was deprived of due process.

However, accused-appellant laments that he was unable to complete his cross-examination. He claims that he failed to propound questions touching on the material points of Marife's testimony, such as the part where the police asked her of the incident, when she boarded the police mobile, and the actual arrest of accused-appellant.

We reviewed the records of this case, but contrary to accused-appellant's assertions, Marife's cross-examination involved matters that are material and relevant to the case. The cross-examination conducted on Marife went as follows:

ATTY. MALLABO:

Q So you were telling the Court that in the early morning of November 24, 2002 a red toyota corolla stopped [in front] of you, am I correct?

A Yes, Sir but it stopped at a distance from me.

xxx xxx xxx

Q How far did the car stop from where you are standing?

A I think the car was somewhere at a distance of similar to from here up to the stairway, Sir.

Q More or less 12 meters distance?

A Yes, Sir

Q By the way what time was that?

A 6:00 o'clock in the morning, Sir.

Q The sun has not yet risen at that time because it is still November?

A Not quite, Sir.

Q A little bit dark yet?

A "Di unman gaano," Sir.

Q At a distance of more or less 12 meters you were able to identify the car as a toyota corolla. My question to you is, do you know how to distinguish between Toyota Altis, Toyota Corolla or Toyota Cresida, do you know that?

A No, Sir.

Q You likewise stated in your sworn statement [you] remember the plate number to be NCY-627. My question to you is why were you interested in looking [at] the plate number of a car parked around 12 meters away from you, why?

A At that time that it was parked at that distance I did not see the plate number, Sir[.] I just found out about the plate number after we got out from the police during the chase while we were chasing the car, Sir.

Q You were telling the Court earlier that one of the occupants in that car alighted and went [beside] you, is that true?

A Yes, Sir.

Q And he asked you "Miss, saan ba"?

A No, Sir "Miss alam mo ba."

Q That is the [only word] that is uttered by the person who alighted from the car?

A Yes, Sir.

Q And because the sentence was not complete you did not mind the person you just casually walked away from him?

A While I was walking he asked me: "Miss alam mo bang . . ." and I said "Sorry po hindi ko po alam" and then he simultaneously pulled out a gun, Sir.

Q So in other words you were walking away from the person who was asking you "alam mo ba" when he pulled his gun?

A No, Sir we were facing each other while we were talking he was asking.

Q That is why you started to walk away from him because you said "I'm sorry po hindi ko po alam"?

A Not yet, Sir.

xxx xxx xxx

Q Did you eventually walk away from the person who was asking you?

A No, Sir not yet because I stopped because he blocked me.

Q When you say not yet do I understand from you that you were able to get away from him?

A No, Sir when he asked me that question "alam mo ba and I said hindi po" he immediately pointed his gun and pointed at me, Sir.

Q Why do you say you do not know when he was not even mentioning anything he simply asked you "alam mo ba"?

A He said: "alam mo ba sabay bunot ng baril."

Q In other words it happened so quickly that you [became] very nervous upon the sight of a gun?

A I was nervous, Sir but I gathered enough courage and the gun did not go on I tried to take the gun from him.

Q Your concentration was preventing the fellow from having his gun fire at you?

A Yes, Sir.

Q And you succeeded in preventing this person for having his gun fire?

A No, Sir he told me "ibigay mo sa akin yong cellphone kung ayaw mo ipuputok ko ito sa yo."

Q Where was that cellphone at the time the fellow asked you to give it to him?

A It was in my right hand, Sir.

Q You were texting your friend or any other person at that time maybe your text mate?

A Yes, Sir I was [texting] my friend to tell her not to text the because I will be going to church, about to [turn] off my phone, Sir.

xxx xxx xxx

Q So he grabbed your cellphone as you claimed'?

A Yes, Sir.

Q Again, starting from the time that he told you: "alam mo ba" up to the time that he grabbed your cellphone probably it took that only around 5 seconds, am I correct?

A It happened fast but I can't tell how many seconds, Sir.

Q But it was so swift that there was no occasion for you to shout for help?

A I was able to shout, Sir.

Q You were able to shout after your cellphone was taken away?

A Yes, Sir that is correct.

Q The reason why you were able to shout only after the cellphone was taken was because it happened so fast?

A Yes, Sir.

Q You were telling us that there were 3 persons inside the Toyota car, how do you know that there were 3 when you are admitting the incident happened so fast?

A There were 2 who were left at the car, the driver and one seated near the driver, Sir.

Q How did you know, did you go inside the car and know how many occupying (sic) inside the car?

A Because while I was walking there was this [car] which was slowly passing by but I did not expect that they were [holduppers] but I could see them, Sir.

Q Why were you interested in looking at the occupants of that [car]?

A Sir because while I was walking this car from time to time stopping (sic), Sir and I was being startled that is why I turned to look, Sir because I did not know them.

Q I thought that you were texting at that time?

A I was texting Sir but the car had passed at a distance from me but my focus was in my hand.

Q What was that person who approached you wearing?

A A white T-shirt, Sir.

Q What about the pants was he wearing a pants?

A He was wearing long pants, Sir.

Q What about shoes?

A I think he was wearing slippers, Sir.

Q Aside from having a white T-shirt, along [with] maong pants and [slippers], what else did you notice from that person who approached you?

A His face because I was focused on his face, Sir.

Q Why were you focused on his face?

A Because while the gun was being pointed at me I was looking at his face, Sir.

Q You were not scared of the gun, I thought you were nervous as you earlier admitted?

A I was nervous but while the gun was pointed at me I was really focusing so that I could remember his face. 38

The above cross-examination questions are not preliminary questions as accused-appellant claims them to be. To summarize, the counsel for accused-appellant asked Marife the following matters: (1) her encounter with accused-appellant including her brief verbal exchange with him; (2) how the gun was pointed at her and the manner her cellphone was taken with force and violence; (3) details of accused-appellant's clothing and the vehicle from where he alighted, as well as the two other persons inside the said vehicle; and (4) how she tried to stay focused at accused-appellant's face so he can recall him. Clearly, the questions propounded on Marife during cross-examination were relevant and material to either prove or disprove the elements of the crime charged and her identification of accused-appellant. Matters concerning how she informed the police of the incident, when she got into the police mobile and those involving accused-appellant's arrest, are merely collateral matters to the incident.

Thus, the Court cannot fault the RTC in declaring that her cross-examination was deemed terminated. To reiterate, the right to cross-examine only pertains to the opportunity to exercise such right, and even if such is availed by the adverse party, the court always has the discretion to limit and consider the cross-examination terminated if it would serve the ends of justice. 39

The alleged inconsistencies did not

Accused-appellant claims that the testimonies of the prosecution witnesses were not enough to hurdle the test of certainty. He contends that the prosecution witnesses present conflicting narrations on: (1) whether the police officers stopped and was informed by Marife that her cellphone was taken from her at gunpoint or whether the police officers had actually seen the snatching incident and immediately ran after accused-appellant who boarded a red car without stopping for the victim to ask her what happened; (2) the type or make of the car used by the perpetrators; and (3) the type or make of the gun used by accused-appellant. He argues that the inconsistencies in their testimonies cast serious doubt on the identity of the perpetrators, thereby warranting the reversal of his conviction.

The alleged contradictions pointed out by accused-appellant are inconsequential to the testimonies of the prosecution witnesses on how accused-appellant committed the offense. It is settled rule that witnesses testifying on the same event do not have to be consistent in every detail considering the inevitability of differences in their recollection, viewpoint or impression. 40 Total recall or perfect symmetry is not required as long as the witnesses concur on material points. 41 What is material in here is that Marife, PO2 Tacdol and PO3 Amar, all pointed to accused-appellant as the person who actually stole Marife's cellphone and was in possession thereof when he was apprehended. The perceived inconsistencies merely relate to details of peripheral matters which do not negate or dissolve the positive identification of accused-appellant as one of the culprits. 42

Furthermore, Marife testified in a categorical, forthright and sincere manner, and appeared to not have been fazed or rattled during her cross-examination. She consistently recalled the incident and positively identified accused-appellant and Ocampo, and detailed the specific role each played in the commission of the crime. She also appeared to not have been motivated by ill will to falsely testify against accused-appellant. It bears emphasis that when there is no evidence to indicate that the prosecution witnesses were actuated by improper motives, the presumption is that they were not so actuated and that their testimonies are entitled to full faith and credit. 43

Notable also that the testimonies of SPO2 Tacdol and PO3 Amar about the identity of accused-appellant as one of the culprits, were clear and convincing. They testified as to how they saw accused-appellant with Marife, and the fact that he immediately boarded a red Toyota car which sped off. Similarly, the defense failed to refute the testimonies of these two police officers and present any evidence showing ill motive on their part to implicate accused-appellant in the crime. In the absence of such evidence, their testimonies are worthy of full faith and credit.

Moreover, matters involving the credibility of the witnesses, are best addressed to the trial court for it is in the best position to decide such question, having heard the witness and observe his demeanor, conduct, and attitude under grueling examination. Their findings will not be disturbed on appeal unless some facts or circumstances off weight have been overlooked, misapprehended or misinterpreted so as to materially affect the disposition of the case. 44

The elements of robbery with

Robo con homicidio or robbery with homicide is an indivisible offense, a special complex crime punished under Art. 294, par. 1 of the RPC which states:

ARTICLE 294. Robbery with violence against or intimidation of persons — Penalties. — Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed x x x.

Robbery with homicide is committed when a person is killed, either by reason or on occasion of the robbery. 45 To sustain a conviction for robbery with homicide, the following elements must be proven by the prosecution: (1) the taking of personal property belonging to another; (2) with intent to gain or animus lucrandi; (3) with the use of violence or intimidation against a person; and (4) on the occasion or by reason of the robbery, the crime of homicide, as used in its generic sense, was committed. 46

It is necessary that the robbery itself be proved as conclusively as any other essential element of the crime. For there to be robbery, there must be taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person or by using force upon things. 47 A conviction for robbery with homicide requires certitude that the robbery is the main purpose and objective of the malefactor and the killing is merely incidental to the robbery. The intent to rob must precede the taking of human life but the killing may occur before, during or after the robbery. 48

In here, the prosecution was able to establish that accused-appellant pointed his gun at Marife, forcibly took her cellphone, and escaped from the crime scene using a red Toyota vehicle with the help of Ocampo and Gratela. It was likewise proven that immediately after accused-appellant took Marife's cellphone and rode the vehicle, SPO2 Tacdol and PO3 Amar chased him and his co-accused, and while being pursued, Gratela was shot and died. Clearly, the main objective of accused-appellant was to deprive Marife of her cellphone, and that the killing of Gratela took place as a consequence of the robbery.

Nonetheless, accused-appellant insists on his innocence and argues that he cannot be convicted of the special complex crime of robbery with homicide because Gratela was killed by the police. He finds support in People v. Manalili49(Manalili), where the Court modified the conviction of the accused from "Attempted Robbery with Homicide" to "Attempted Robbery" because the deceased robber was killed by a soldier. 50

Unfortunately, accused-appellant had misappreciated the ruling in Manalili where the Court modified the conviction from "Attempted Robbery with Homicide" to "Attempted Robbery" and "Murder."

The accused in Manalili were charged of three separate offenses namely: attempted robbery, frustrated murder and illegal possession of firearms. It was established during trial that the accused attempted to rob the passengers of a bus. During such incident, three had been killed, including one of the robbers who was shot by a soldier who happened to be one of the passengers.

After trial, the RTC convicted therein accused of "Attempted Robbery with Homicide" upon the observation that "the prosecution should not have split the crime into three." Owing to the disparity between the crimes charged in the three informations filed against the accused, and the crime to which they were convicted by the trial court, the Court had to resolve the issue involving "the legal characterization of the crimes committed." Thus, when the Court modified the conviction of the accused to "Attempted Robbery" and "Murder," it did so based on the constitutional right of the accused to be informed of the nature and cause of the accusation against him, viz.:

Finding that "[t]he facts established show that on the occasion of the attempted robbery, four persons were killed and one was injured," the trial court adjudged appellants guilty of the "complex crime of attempted robbery with homicide under Article 297 of the Revised Penal Code."

We disagree. Appellants were not properly charged with this offense in any of the three Informations filed against them. As the trial court itself observed, "the prosecution filed three separate informations, one for attempted robbery, the other for multiple frustrated murder and the third [for] qualified illegal possession of firearms used in multiple murder." There was no information charging the special complex crime of attempted robbery with multiple homicide. Thus, to hold appellants liable for this offense, notwithstanding the absence of the proper information, is to violate the explicit guarantee of the Constitution, which provides:

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

The hornbook doctrine in our jurisdiction is that an accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than that charged in the complaint or information would be violative of this constitutional right. Indeed, the accused cannot be convicted of a crime, even if duly proven, unless it is alleged or necessarily included in the information filed against him.

Although no single information charged appellants with the said crime, the trial court apparently based its decision on an amalgam of allegations contained in the separate Informations filed. Hence, in the first Information, the court a quo found the element of attempted robbery and the death of one of the robbers; and, in the second, the death of three persons.

xxx xxx xxx

Hence, although there is enough evidence on record to sustain a conviction for attempted robbery with homicide, we are constrained to convict the accused only for the crimes charged and duly proven against them. Under the first Information, the appellants can be held guilty only of the crime of attempted robbery. The accused commenced their planned robbery with direct overt acts by announcing a hold up, firing a warning shot in the air and ordering the passengers to raise their hands and bow their heads. They failed to carry out all acts of execution which should have consummated the crime of robbery, due to the resistance of a passenger who exchanged fire with them, and not because of their own voluntary desistance.

Although a prosecution witness testified that one of the malefactors took money from a woman passenger, the said victim never took the witness stand. In any event, appellants cannot be held liable for consummated robbery, for the said Information merely charged them with attempted robbery. When there is variance between the offense charged in the information and that proved, Section 4 of Rule 120 mandates that the accused may be convicted only "of the offense charged included in that which is proved."

Again, we emphasize that, though the Information in Crim. Case No. 21-1156 (first case) alleged that "one of the hold-up men was killed," there is absolutely no evidence that appellants were responsible for such death. On the other hand, while the prosecution proved the appellants' liability for the murder of Alfredo Tango and Sonny Quintua, their deaths were not alleged in said Information in the first case. Hence, we can sustain appellants' conviction only for attempted robbery, not for attempted robbery with homicide. 51 (italics in the original)

Clearly, the Court in Manalili did not change the offense for which the accused were convicted because it believed that the killing was not committed by the accused. It merely recognized the constitutional right of therein accused to be informed of the nature and cause of the accusation against them, considering that they were merely charged for attempted robbery, frustrated murder and illegal possession of firearms, and not the special complex crime of attempted robbery with homicide.

Nonetheless, accused-appellant anchors his claim of innocence based on a portion of the decision in Manalili which reads:

It is true that the Information for attempted robbery contained the allegation that one of the robbers was killed during such attempt. This, however, does not warrant a conviction for the special complex crime. Article 297 of the Revised Penal Code provides that the attempted robbery and the killing be perpetrated by the same person. Said article speaks of the same person "being guilty of such offenses"; that is, robbery and homicide. In this case, it is clear that the dead robber was killed not by his cohorts but by one of the passengers.

However, accused-appellant cannot rely on the abovequoted statement for being merely an obiter dictum — an opinion of the court upon a question which was not necessary to the decision of the case before it. It is an opinion uttered by the way, not upon the point or question pending, as if turning aside from the main topic of the case to collateral subjects, or an opinion that does not embody the court's determination and is made without argument or full consideration of the point. 52

To reiterate, Manalili recognized the constitutional right of the accused to be informed of the nature and cause of its accusation. The matter on whether the accused should also be the killer in the attempted robbery with homicide was not the issue in that case. Accordingly, herein accused-appellant cannot benefit from the obiter uttered in Manalili, for it lacks the force of an adjudication, being a mere expression of an opinion with no binding force for purposes of res judicata. 53

At any rate, the Court had already settled in People v. Casabuena54(Casabuena) that Art. 294, par. 1 of the RPC does not require that the one who perpetrated the killing be the same person who committed the robbery. What the law only requires for conviction of robbery with homicide is that the killing must be committed by reason or on occasion of the robbery.

In Casabuena, the Court convicted appellants Casabuena and Formaran, of the complex crime of robbery with homicide even when the victim Jimmy Arizala (third robber), was shot dead by a responding policeman on the occasion of the robbery. The Court, adopting the opinion of Justice Mario V. Lopez, explained:

Article 294, paragraph 1 of the Revised Penal Code is plain and clear. The law only requires the crime of homicide be committed by reason of or on the occasion of robbery. It is not necessary that the person killed must be the victim of the robbery. It can be one of the robbers or an innocent bystander. Neither does it impose that the person who perpetrated the killing must be the same person who committed the robbery. There should be no distinction in the application of a statute where none is indicated. Fundamental is the principle in statutory construction that where the law does not distinguish, the courts should not distinguish. Ubi lex non distinguit, nec nos distinguere debemus.

[D]issecting the paragraphs of Article 294 of the Revised Penal Code reveals that the legislature distinguished the treatment of the different accessory crimes. The first part of Article 294 (1) deals with the commission of homicide "by reason or on occasion of the robbery" without any qualification as to who committed the homicide or when the homicide was committed. However, the second part of paragraph I involves the commission of robbery "accompanied by rape or intentional mutilation or arson." The use of the words "accompanied by" suggests that for the accessory crimes of rape, mutilation and arson, the robbers themselves must have committed such crimes. On the other hand, the use of the words "by reason or on occasion of the robbery," evinces that the law merely requires that a homicide was committed by reason or occasion of the robbery. Notably, the difference in phraseology within the same paragraph of the law is crucial. Fundamental is the principle that qualifying words restrict or modify only the words or phrases to which they are immediately associated. The legislature would not have deliberately used different modifying phrases within the same paragraph if it intended similar treatment for the accessory crimes.

Further, in Article 294, paragraph 4, the legislature identified who the perpetrator and the victim must be in the special complex crime of robbery with serious physical injuries. It specified that in the course of the execution of robbery, "the offender shall have inflicted upon any person not responsible for its commission any of the physical injuries" covered by subdivisions 3 and 4 of Article 263. The law explicitly used the term "offender" evincing that the physical injury must be committed by the same person who is guilty of robbery. Yet, no such import can be found in Article 294, paragraph 1.

[T]he introductory sentence in Article 294 which provides "Any person guilty of robbery with the use of violence against or intimidation of any person" must be interpreted merely as a prelude to the enumeration of penalties to be imposed upon persons guilty of robbery. This is because the proper penalties hinge upon the presence or absence of the attending circumstances specified in Article 294, paragraphs 1 to 5, independent of who brought about such circumstances, unless otherwise qualified in the said paragraphs. To interpret that all the circumstances under Article 294 must be committed by the person guilty of the robbery will erase the distinctions among the five paragraphs that were deliberately put in place by the law. 55 (emphases supplied)

It bears emphasis that once a homicide is committed by or on the occasion of the robbery, the felony committed is robbery with homicide. 56 It is only the result obtained, without reference or distinction as to the circumstances, causes or modes or persons intervening in the commission of the crime that has to be taken into consideration. 57 Homicide is said to have been committed by reason or on the occasion of robbery it, for instance, it was committed to (a) facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or, (d) to eliminate witnesses in the commission of the crime. As long as there is a nexus between the robbery and the homicide, the latter crime may be committed in a place other than the situs of the robbery. 58

To facilitate their escape from the scene, accused-appellant and his co-accused sped off in a red Toyota vehicle which led to a car chase. While escaping, they engaged the responding police officers with gunfire where Gratela died as a result. Evidently, the killing of Gratela was connected with the robbery. Accused-appellant did not present any extricating evidence to prove that he prevented the shootout from happening. Hence, his conviction for the special complex crime of robbery with homicide should be upheld.

The penalty of reclusion perpetua

The RTC, as affirmed by the CA, meted the sentence of reclusion perpetua with eligibility for parole due to the presence of a mitigating circumstance. The trial court explained:

Consonant to the abolition of the death penalty under Republic Act No. 9346, the penalty that can be imposed is only reclusion perpetua subject to the condition imposed by the said law. Section 2 of RA 9346 provides that sentences "which" will be reduced to reclusion perpetua by reason of the law, shall not be eligible for parole.

In the present case, this court did not find the presence of any aggravating circumstances. The court may even appreciate the presence of a mitigating circumstance as this will be favorable for both accused. Under Article 13 specifically par. 3 of the Revised Penal Code, one of the mitigating circumstances enumerated is "that the offender had no intention to commit so grave a wrong as that committed." For this reason, the imposable penalty is reclusion perpetua with both accused still eligible for parole.

In here lies the error of both the CA and the RTC on two counts.

First, the mitigating circumstance under Art. 13, par. 3 of the RPC, addresses itself to the intention of the offender at the particular moment when the offender executes or commits the criminal act. 59 It is obtaining when there is a notable disparity between the means employed by the accused to commit a wrong and the resulting crime committed. 60 The intention of the accused at the time of the commission of the crime is manifested from the weapon used, the mode of attack employed and the injury sustained by the victim. 61

Based on the above precepts, the mitigating circumstance under Art. 13, par. 3 of the RPC cannot be appreciated in the instant case. In their desire to escape and protect their loot, Gratela suddenly fired at SPO2 Tacdol and PO3 Amar with the apparent intention of either inflicting serious harm or killing them. When Gratela decided to shoot at the responding police officers, accused-appellant, Ocampo and Gratela, were all aware or had at least anticipated that the police would retaliate by firing back at them. Hence, they knew the danger that will come upon them when they initiated the gunfire. Accused-appellant failed to present evidence to show that he prevented Gratela from firing at the police. Viewed in this light, accused-appellant cannot be deemed to have not intended to commit a grievous act, for at that moment, accused-appellant and his cohorts were driven by a murderous instinct to escape from being caught by firing at the police who were chasing after them.

Second, parole is extended only to those convicted of divisible penalties. 62 The Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with reclusion perpetua, 63 it being an indivisible penalty and carrying no minimum nor maximum period. With no "minimum penalty" imposable on those convicted of a crime punishable by reclusion perpetua, then even prior to the enactment of R.A. No. 9346, persons sentenced by final judgment to reclusion perpetua could not have availed of parole under the Indeterminate Sentence Law. 64 Hence, it was erroneous for the trial court and the CA to mete a sentence of reclusion perpetua with eligibility for parole.

Accordingly, Art. 63 65 of the RPC shall apply in imposing the penalty against accused-appellant considering the absence of any modifying circumstance. Under Art. 294, par. 1 of the RPC, as amended by R.A. No. 7659, 66 the penalty for robbery with homicide is reclusion perpetua to death. Applying Art. 63 of the RPC, the lesser penalty of reclusion perpetua shall be imposed.

Finally, no damages may be awarded herein in line with the ruling in People v. Jugueta67 that the same may be granted only if those who were killed were the victims of the robbery or mere bystanders and not when those who died were the perpetrators or robbers.

WHEREFORE, the appeal is DISMISSED. The Decision of the Court of Appeals dated March 11, 2014 in CA-G.R. CR HC No. 05750 is hereby AFFIRMED with MODIFICATION. Accused-appellant Virgilio Brazil y Abad is found GUILTY beyond reasonable doubt of Robbery with Homicide and is sentenced to suffer the penalty of reclusion perpetua.

SO ORDERED."

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

by:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

 

Footnotes

* Part of the Supreme Court Decongestion Program.

1.Rollo, pp. 2-14; penned by Associate Justice Isaias P. Dicdican, with Associate Justices Michael P. Elbinas and Victoria Isabel A. Paredes, concurring.

2. CA rollo, pp. 94-114; penned by Judge Bayani V. Vargas.

3. Records, pp. 1-2.

4.Id. at 1.

5. Identified as a red Toyota Corona with plate number NCY-627.

6. TSN, April 3, 2003, p. 3.

7. TSN, April 24, 2003, p. 33.

8. TSN, April 3, 2003, pp. 3-10.

9. TSN, March 29, 2005, pp. 7-8.

10. TSN, March 21, 2006, p. 8.

11. TSN, March 29, 2005, pp. 8-9.

12.Id. at 9-10.

13.Id. at 10-14.

14.Id. at 10.

15. Records, pp. 4-5.

16. TSN, April 6, 2010, pp. 5-14.

17.Id. at 14-15.

18. TSN, October 21, 2010, pp. 5-9.

19.Id. at 9-12.

20.Id. at 15.

21. TSN, April 7, 2011, pp. 7-11.

22. CA rollo, p. 114.

23.Rollo, p. 13.

24. CA rollo, pp. 185-186.

25.Id. at 54-55.

26.Rollo, pp. 20-21.

27.Id. at 22-23.

28.Id. at 30-36.

29. 355 Phil. 652 (1998).

30.Rollo, pp. 30-31.

31. CA rollo, pp. 124-125.

32.Id. at 130-131.

33.Id. at 56.

34. 448 Phil. 749 (2003).

35.Fulgado v. Court of Appeals, 261 Phil. 189, 197 (1990).

36.People v. Escote, Jr., supra note 34, at 770; People v. Suplito, 373 Phil. 269, 279 (1999).

37. TSN, April 24, 2003, pp. 16-35.

38. TSN, April 24, 2003, pp. 22-34.

39.The Officers and Members of the Integrated Bar of the Philippines, Baguio-Benguet Chapter v. Judge Pamintuan, 485 Phil. 473, 493 (2004), citing People v. Gorospe, 214 Phil. 201, 210 (1984).

40.People v. Roelan, G.R. No. 241322, September 8, 2020; People v. Cariaga, 457 Phil. 832, 849 (2003).

41.People v. Roelan, id.; People v. Pateo, 474 Phil. 691, 699 (2004).

42. See People v. Torres, 743 Phil. 553, 565 (2014); Crisostomo v. People, 644 Phil. 53, 63 (2010).

43.People v. Tabaco, 336 Phil, 771, 796 (1997).

44.People v. Maxion, 413 Phil. 740, 747-748 (2001).

45.People v. Musa, 609 Phil. 396, 420 (2009).

46.People v. Roelan, supra note 40; People v. Bacyaan, G.R. No. 238457, September 18, 2019.

47.People v. Madrelejos, 828 Phil. 732, 737 (2018).

48.People v. Mancao, G.R. No. 228951, July 17, 2019; People v. Salga, 836 Phil. 1188, 1201 (2018); Crisostomo v. People, 644 Phil. 53, 61 (2010).

49.Supra note 29.

50.Rollo, pp. 30-31.

51.People v. Manalili, supra note 29, at 683-686.

52.Saludo, Jr. v. Philippine National Bank, G.R. No. 193138, August 20, 2018.

53. See Bermon Marketing Communication Corporation v. Sps. Yaco, G.R. No. 224552, March 3, 2021; Dee v. Harvest All Investment Limited, 807 Phil. 572, 583 (2017), citing Landbank of the Philippines v. Santos, 779 Phil. 587, 608 (2016).

54. G.R. No. 246580, June 23, 2020.

55.Id.

56.People v. Palema, G.R. No. 228000, July 10, 2019.

57.People v. De Jesus, 473 Phil. 405, 427 (2004).

58.Id. at 428.

59.People v. Badriago, 605 Phil. 894, 911 (2009).

60.People v. Comillo, Jr., 620 Phil. 775, 802 (2009).

61.People v. Gonzalez, Jr., 411 Phil. 893, 925 (2001).

62.People v. Leocadio, G.R. No. 237697, July 15, 2020.

63.People v. Aquino, 348 Phil. 395, 403-404 (1998).

64. A.M. No. 15-08-02-SC (Guidelines for the Proper Use of the Phrase "Without Eligibility for Parole" in Indivisible Penalties) dated August 4, 2015.

65. Art. 63. Rules for the application of indivisible penalties. — x x x

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof:

xxx xxx xxx

2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. x x x

66. An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Laws, as Amended, Other Special Penal Laws, and for Other Purposes.

67. 783 Phil. 806, 852 (2016).