SECOND DIVISION
[G.R. No. 208408. July 4, 2016.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERRY BUEN Y ALMAYDA, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 04 July 2016 which reads as follows:
"G.R. No. 208408 — People of the Philippines, plaintiff-appellee, v. Gerry Buen y Almayda, accused-appellant.
After a careful review of the records of the case, the Court finds the appeal lacking in merit to warrant the reversal of Gerry Buen y Almayda's (appellant) conviction in the Decision dated February 20, 2009 of the Regional Trial Court of Legazpi City, Branch 6 and affirmed by the Decision dated September 28, 2012 of the Court of Appeals. Nonetheless, the Court rules that appellant is not guilty of murder but of homicide only since the evidence failed to establish the qualifying circumstance of treachery.
There is treachery when: (1) the means, methods and forms of execution employed gave the person attacked no opportunity to resist or retaliate; and, (2) such means, methods and forms of execution were deliberately and consciously adopted by the accused without danger to his person. When a killing is preceded by an argument or quarrel, treachery can no longer be appreciated, as the victim could be said to have been forewarned and could anticipate aggression from the assailant.
It has been established in this case that there was a prior altercation between Orlan Borjal (Orlan) and appellant while they were inside the dance hall. Orlan successfully parried appellant's assault with a knife. After they were pacified, Orlan and his friends departed, but appellant followed them. Another fight ensued, resulting in the fatal stab wound of Orlan and injuries to his companions, Reynaldo Borjal and Allan Quebral (Quebral). Thus, it cannot be said that the attack by appellant was so sudden and unexpected to deprive Orlan and his companions of the opportunity to defend themselves or retaliate.
Undeserving of credence is the testimony of Quebral that appellant came from behind and was positioned at the left side of Orlan when he suddenly stabbed the latter. While Quebral stated that he saw appellant waiting for them under a mango tree, he did not say that appellant was hiding before commencing the attack. It therefore cannot be concluded that appellant's assault was unexpected since he was already spotted prior to his actual confrontation with Orlan and his friends. Besides, the testimonies of the other disinterested prosecution witnesses who stated that a scuffle transpired and that Orlan was killed during that incident are more credible than the testimony of Quebral who was admittedly a friend of Orlan and who also sustained a woman from the appellant.
The penalty provided for homicide is reclusion temporal. Considering that no aggravating or mitigating circumstances attended the commission of the crime, reclusion temporal must be applied in its medium period which is 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 penalty next lower in degree is prision mayor with a range of six (6) years and one (1) day to twelve (12) years. Appellant must therefore suffer the indeterminate prison term of 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.
The awards of P31,239.00 as actual damages and P50,000.00 as moral damages are affirmed. In line with recent jurisprudence, civil indemnity is awarded in the amount of P50,000.00. Interest shall be imposed on all monetary awards at the rate of 6% per annum from the date of finality of this Resolution until fully paid. ATICcS
WHEREFORE, the assailed September 28, 2012 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 03838 is AFFIRMED with MODIFICATIONS. Accused-appellant Gerry Buen y Almayda is guilty beyond reasonable doubt of the crime of homicide and shall suffer the indeterminate penalty of 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. Civil indemnity in the amount of P50,000.00 is awarded in line with prevailing jurisprudence. The monetary awards for damages shall earn interest at the legal rate of 6% per annum from the date of finality of this Resolution until fully paid. (Mendoza, J., on official leave from July 4-22, 2016 per Resolution dated June 21, 2016 in A.M. No. 16-06-05-SC).
SO ORDERED."
Very truly yours,
MA. LOURDES C. PERFECTODivision Clerk of Court
By:
(SGD.) TERESITA AQUINO TUAZONDeputy Division Clerk of Court