FIRST DIVISION
[G.R. No. 224902. August 10, 2022.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ROQUE LUSPO, JR. y LEE, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court's First Division issued a Resolution datedAugust 10, 2022 which reads as follows:
"G.R. No. 224902 (People of the Philippines vs. Roque Luspo, Jr. y Lee). — This is an Appeal 1 from the May 18, 2015 Decision 2 and the January 20, 2016 Resolution 3 of the Court of Appeals, Cebu City (CA) in CA-G.R. CR No. 02247, 4 which affirmed the January 20, 2013 Decision 5 of the Regional Trial Court of Tagbilaran City, Branch 2 (RTC) in Criminal Case No. 13279, finding accused-appellant Roque Luspo, Jr. y Lee (Luspo) guilty beyond reasonable doubt of the crime of homicide.
Antecedents
Luspo was charged with the crime of homicide for the killing of Armel Gumin 6(Gumin), in an Amended Information 7 dated January 7, 2008, the accusatory portion of which reads:
That on or about the 18th day of June 2006, in the municipality of Tubigon, province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and without justifiable cause did then and there, willfully, unlawfully and feloniously shoot unarmed victim, Armel Gumin three (3) times with the use of an unlicensed firearm, thereby hitting and inflicting fatal gunshot wounds on the victim's left chest and two gunshot wounds on the victim's head which resulted to the victim's death, to the damage and prejudice of the heirs of the deceased victim.
Acts committed contrary to the provisions of Article 249 of the Revised Penal Code with the aggravating circumstance with the use of an unlicensed firearm in the commission of the crime. 8 (underscoring in the original)
Upon arraignment, Luspo pleaded not guilty to the charge. 9 After pre-trial conference was terminated, 10 trial on the merits ensued. CAIHTE
Evidence for the Prosecution
Jovanie Zoilo (Zoilo) testified that on June 18, 2006, at 6:00 p.m., he saw Neciforo Ora (Ora) talking to Gumin in front of Ora's house. A few moments later, Zoilo heard three gunshots. He turned his head toward the direction of the shots, and saw Luspo pointing a gun towards Gumin, who was already lying on the road. He then saw Luspo walk away. 11
Senior Police Officer III Panfilo Orfano (SPO3 Orfano) of the Tubigon police station testified that at around 7:00 p.m. on June 18, 2006, he was informed of a shooting incident in Barangay Cahayag, Tubigon. He proceeded to the scene with the Tubigon Municipal Health Officer, Dr. Bob Bernabe P. Batausa (Dr. Batausa). Upon arriving at the scene, they saw the lifeless body of Gumin lying on the ground. At that time, a crowd of more than 10 people had already gathered around the body. SPO3 Orfano secured the area and conducted a search for evidence around the crime scene. His search yielded no firearms, bullet slugs, or empty shells. 12
Upon examination by Dr. Batausa, it was determined that Gumin sustained three gunshot wounds: one on his forehead, another on his left cheek, and the third on his left chest. 13
Evidence for the Defense
Luspo claimed that on the day in question, at 5:00 p.m., he was having a haircut at a barbershop when Gumin arrived and angrily confronted him regarding a stolen chicken. Gumin appeared drunk, and shouted "Rocky [Luspo], bakit hindi ka nagsabi sa akin na si Foro [Ora] ay kasama ni Edgar sa pagkuha sa manok? Papatayin kita! Pag sinabi ko gagawin ko. Babalikan kita!" 14
Luspo decided to inform Ora of the incident, but since he feared for his life, he went home to get his father's .38 caliber firearm to defend himself. As he was nearing Ora's house, he saw Ora and Gumin having an altercation. Gumin saw him and ran angrily towards him shouting: "Putang ina mo! Fuck You! Wala kang kwentang tao! Dapat kang mamatay!" Then, he saw Gumin draw a gun from around his waist. At this point, Luspo took out his own gun, and fired three shots at Gumin. 15
Testifying for the defense, Ora claimed that on June 18, 2006, he was at home with his family when Gumin came around. Gumin honked the horn of his motorcycle, knocked on their gate, and shouted: "Kasabuat ka ni Rocky!" Ora went to talk to Gumin, and noticed that the latter was under the influence of alcohol. 16
When Luspo arrived, Gumin charged at Luspo, muttering: "Putang ina ka, ang sarap mong patayin." Ora saw Gumin attempting to draw something from his waist. Ora then heard three rapid gunshots. He did not see where the shots came from, but after the gunbursts, he saw Gumin already lying on the ground. He then went inside his house, fearing for his life. 17
Armando Delima (Delima) recalled that on the night in question, he was on his way to buy cigarettes from a nearby store, when he saw Luspo and Gumin. Gumin shouted "Putang ina mo, papatayin kita!" as he was running towards Luspo. Gumin pulled out a gun from the left side of his waist and pointed it at Luspo. Luspo then drew his own gun. There was then a rapid succession of three gunshots, and Gumin fell. Luspo left the area, and Delima approached the body of Gumin. Delima saw that Gumin had a gun in his right hand. He did not know what type of gun it was, but testified that it had a brown handle. 18
Raymundo Estenzo (Estenzo) testified that on the night in question, he was cooking inside his house when he heard three successive gunbursts. He went outside and saw Gumin lying on the ground while holding a revolver with a dark brown handle in his right hand. Estenzo went back in his house to finish cooking. About 45 minutes later, he went outside again and noticed that the body had been moved. At that time, he no longer saw the gun nor the watch and necklace Gumin had on earlier. 19
Edgardo Calotes (Calotes) is the brother-in-law of both Gumin and Luspo. He testified that he knew Gumin to be a drug user and a drunkard who exhibited violent tendencies. On one occasion, when Gumin treated him to barbecue, Gumin showed off two of his firearms — one .45 caliber and another .38 caliber pistol. Calotes left Bohol and moved to Manila, upon the advice of his sister, because of a death threat from Gumin. 20
Daniel Vejar, Jr. (Vejar), a neighbor of Gumin, testified that during the wake of his nephew on March 26, 2006, Gumin started a quarrel. Gumin left the wake, but returned later with a .38 caliber pistol in hand. 21
Ruling of the RTC
There is no denying that Luspo killed Gumin. However, by invoking self-defense, Luspo assumed the burden of establishing his plea of self-defense by credible, clear, and convincing evidence. To escape criminal liability, the accused must show that: (1) the victim committed an unlawful aggression, (2) the accused used reasonable means to prevent or repel the aggression, and (3) there was lack of sufficient provocation on the part of the accused. 22
The RTC held that Luspo failed to prove unlawful aggression on the part of Gumin. When Luspo fired at Gumin, the latter was merely attempting to draw something from his waist. Such a threat, even if made with a weapon, or the belief that a person was about to be attacked, is not sufficient. According to the trial court, it is necessary that intent be ostensibly revealed by an act of aggression or some external acts showing the commencement of actual and material unlawful aggression. 23
Unlawful aggression is the primordial element of the justifying circumstance of self-defense, and without which, there can be no justified killing in defense of oneself. 24
More, the RTC considered the circumstance that Luspo fired three gunshots aimed at Gumin's torso and head, which revealed that Luspo's intention was not merely to defend himself, but to finish off Gumin. Considering that Gumin was 20 meters away and allegedly inebriated, a single gunshot to any part of the body would have been enough to disable him and allow Luspo to get away. Thus, the means employed by the accused was not reasonable. 25
The RTC also considered that Luspo intentionally passed by the area where Gumin was, with firearm in hand, instead of avoiding him entirely. It concluded that Luspo wanted to show that he was man enough to confront Gumin and would not be threatened into hiding. 26
Luspo also raised voluntary surrender as a mitigating circumstance. However, the RTC did not find such circumstance in his favor, ruling that Luspo did not surrender himself voluntarily as he was actually arrested nine days after the incident. Luspo even discarded his firearm to hide his link to the crime. The lack of resistance to the arrest did not constitute voluntary surrender. The accused merely felt the inevitability of his arrest and succumbed to the situation. 27
The RTC considered the fact that there was provocation and threat on the part of Gumin. The incident at the barbershop provoked Luspo to do what he did, and may be considered as a mitigating circumstance in the latter's favor. 28
On the other hand, the killing was facilitated by the use of an unlicensed firearm, which is an aggravating circumstance pursuant to Republic Act (R.A.) No. 8294. 29 DETACa
The dispositive portion of the RTC Decision reads:
WHEREFORE, IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, accused ROQUE LUSPO, JR. is hereby found GUILTY BEYOND REASONABLE DOUBT OF HOMICIDE. Appreciating the mitigating circumstance of sufficient provocation or threat on the part of the offended party immediately preceding the act offset by the aggravating circumstance of use of unlicensed firearm, the court hereby sentences the accused to an INDETERMINATE PENALTY OF IMPRISONMENT OF 8 years and 1 day of PRISION MAYOR medium to 14 years 8 months and 14 days of RECLUSION TEMPORAL medium.
By way of civil liability, the accused is condemned to pay the heirs of the late Armel Gumin the following:
1. The sum of P50,000.00 as civil indemnity;
2. The sum of P60,000 as reimbursement for the burial expenses;
3. The sum of P50,000 as attorney's fees;
4. The sum of P50,000 as moral damages; and
5. The sum of P30,000 as exemplary damages.
Finally, interest at the rate of six percent (6%) per annum shall be applied to the award of civil indemnity, moral damages and exemplary damages from the finality of judgment until fully paid in the two (2) aforementioned criminal cases. 30 (emphases in the original)
Luspo filed a Notice of Appeal, 31 elevating the case to the CA.
Ruling of the CA
The CA was one with the RTC in ruling that Luspo's claim of self-defense was not supported by clear and convincing evidence. It affirmed the RTC's evaluation of the evidence on record and concluded that Luspo shot Gumin while the latter was only attempting to draw something from his waist. 32
The defense also failed to prove by competent and credible evidence that Gumin was indeed armed at the time he was drawing something from his waist. While Estenzo and Delima tried to impress that Gumin was holding a gun when he fell, their testimonies could not be verified. Moreover, Delima's testimony is inconsistent with that of Ora, as to whether or not Gumin was able to draw something from his waist. 33
For unlawful aggression to be present, there must be actual physical force or actual use of weapon. The person attacked must be confronted by a real threat on his life and limb; the peril sought to be avoided is imminent and actual, and not merely imaginary. Based on the evidence, the CA declared that the acts of Gumin did not constitute unlawful aggression. 34
Furthermore, considering the number of gunshot wounds sustained by the victim, the CA concluded that Luspo was determined not just to defend himself, but to kill Gumin. He could have just fired one shot and fled, or he could just flee considering the distance between him and Gumin. Thus, even if there was unlawful aggression, the means used to repel the attack was far from reasonable. 35
Accordingly, the CA also refused to appreciate voluntary surrender as a mitigating circumstance, considering the lack of spontaneity on the part of Luspo. 36
Thus, the CA denied the appeal and affirmed the ruling of the RTC in toto. 37 Luspo moved for reconsideration, which was denied by the CA in its January 20, 2016 Resolution. 38 Luspo, through counsel, filed a Notice of Appeal dated February 16, 2016, seeking to elevate the case to this Court, which was given due course by the CA on March 4, 2016. 39
Issue
The main issue raised by Luspo is whether the defense sufficiently established the existence of all the elements of self-defense. aDSIHc
Arguments for Luspo
Both the RTC and the CA held that as can be culled from Luspo's testimony, Gumin was merely trying to pull something from his waist. Luspo argues otherwise, and positively stated that he saw that Gumin already had a firearm in his hand, which he pointed at him. 40 He further argues that the lower courts disregarded the positive testimonies of the other defense witnesses who corroborated his claims. Gumin's verbal threats, coupled with his physical stance, constituted an imminent threat to Luspo. 41
As to the means employed, Luspo contends that reasonableness does not require material commensurability between the attack and the defense. Luspo's gun was the only weapon available to him at the time. Further, that he fired successive shots shows that he had no time to reflect on his actions, and acted on the raw instinct of self-preservation. Had he wanted to ensure Gumin's death, he should have continued shooting after Gumin fell to the ground. 42
Arguments for the People
The People maintain that Luspo failed to prove all the requisites of self-defense by credible, clear, and convincing evidence. Unlawful aggression may be actual or imminent. There was no actual physical attack made upon Luspo. Neither was there imminent unlawful aggression. While defense witnesses heard Gumin shout invectives at Luspo, they gave conflicting testimonies as to whether or not Gumin was able to actually draw and point a gun at Luspo. More importantly, no firearm was recovered at the scene of the crime. At most, this shows that Gumin merely adopted a threatening attitude against Luspo. 43
The element of reasonable necessity in the means employed to prevent or repel the unlawful aggression is likewise absent. Based on the number and location of the wounds sustained by the victim, Luspo used unreasonably excessive force, negating the second element of self-defense. 44
As to the claim of voluntary surrender, the same cannot be appreciated, as the element of spontaneity of the surrender is wanting. 45
The Court's Ruling
Luspo brought the instant case to this Court by way of notice of appeal.
The general rule is that appeals of criminal cases shall be brought to this Court by filing a petition for review on certiorari under Rule 45 of the Rules of Court; except where the CA has imposed the penalty of reclusion perpetua, life imprisonment, or a lesser penalty, in which case it may be appealed by a Notice of Appeal filed before the CA. 46 This is consistent with Section 3, Rule 56 of the Rules of Court, which provides that appeals to this Court "may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment."
Sec. 13 (c), Rule 124 of the Rules of Court provides:
Sec. 13. Certification or appeal of case to the Supreme Court. —
xxx xxx xxx
(c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals.
The maximum of the indeterminate penalty imposed on Luspo and affirmed by the CA is reclusion temporal in its medium period, which is certainly a lesser penalty than reclusion perpetua or life imprisonment. However, the phrase "lesser penalty" found in Sec. 13 (c), Rule 124 of the Rules of Court certainly should not be understood to mean any penalty lesser than reclusion perpetua or life imprisonment. With the enactment of R.A. No. 9346 47 prohibiting the imposition of the death penalty, all other remaining penalties are essentially lesser than reclusion perpetua or life imprisonment.
Instead, the lesser penalty contemplated under Sec. 13 (c), Rule 124 of the Rules of Court should be understood in relation to Sec. 3 (c), Rule 122: "where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed x x x."
Luspo was convicted of one count of homicide only. Verily, it was not committed on the same occasion or arose out of an occurrence that gave rise to a more serious offense. Unfortunately for Luspo then, his situation does not fall within the cases in which an appeal to this Court may be made by the mere filing of a notice of appeal.
The right to appeal is neither a natural right nor is it a component of due process. It is a mere statutory privilege, and may be exercised only in the manner and in accordance with the provisions of law. 48 Appeal by notice of appeal was not available to Luspo as a remedy at all, thus, this case may be denied for being the wrong mode of appeal.
While the Court has, on occasion, relaxed the application of the rules and treated an ordinary appeal as an appeal by certiorari, such liberality is not warranted in this case. Appeal to this Court by petition for review on certiorari shall raise only questions of law. Moreover, such review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons. 49
Luspo's allegation of self-defense hinges on the element of unlawful aggression. Without unlawful aggression, there can be no justified killing in defense of oneself. 50 In ruling on the matter, the lower courts held that the defense failed to prove that Gumin was indeed armed with a gun, which he used to threaten Luspo.
Luspo's theory on appeal assails the appreciation of evidence by the courts a quo. Thus, the appeal primarily raises questions of fact, which cannot be entertained by the Court in a Rule 45 petition. 51 It is a settled rule that the Court is not a trier of facts, and it is not its function to examine, review or evaluate the evidence all over again. 52
The courts a quo held that Gumin's alleged possession and attempted use of a firearm was not clearly established. They found that the testimonies of the defense witnesses on such matter were inconsistent, and the CA pointed out that no physical evidence supporting such claim was found. The Court finds no reason to disturb the factual findings of the lower courts, which, as a rule, are accorded the highest respect and are generally not disturbed by the appellate court, unless they are found to be clearly arbitrary or unfounded, or some substantial fact or circumstance that could materially affect the disposition of the case was overlooked, misunderstood, or misinterpreted. 53 No such circumstances are present here. ETHIDa
Neither does the Court find any error on the part of the CA in not appreciating Luspo's surrender as a mitigating circumstance in his favor. The CA correctly held that it lacked spontaneity, which is an element of voluntary surrender as a mitigating circumstance. 54
WHEREFORE, the appeal is DISMISSED. The May 18, 2015 Decision and the January 20, 2016 Resolution of the Court of Appeals, Cebu City in CA-G.R. CR No. 02247 are hereby AFFIRMED.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1. Rollo, pp. 18-19.
2. Id. at 6-17; penned by Associate Justice Germano Francisco D. Legaspi and concurred in by Associate Justices Renato C. Francisco and Jhosep Y. Lopez (now a Member of the Court).
3. CA rollo, pp. 103-104; penned by Associate Justice Germano Francisco D. Legaspi and concurred in by Associate Justices Gabriel T. Ingles and Marilyn B. Lagura-Yap.
4. Also stated as "CA-G.R. CEB-CR No. 02247" in the CA Resolution.
5. CA rollo, pp. 30-43; penned by Presiding Judge Jennifer Chavez-Marcos.
6. Also referred to as "Armel Gumen" in some parts of the records (see records, p. 5).
7. Records, pp. 163-164.
8. Id. at 163.
9. Id. at 199.
10. Id. at 242.
11. TSN, September 28, 2009, pp. 12-14.
12. TSN, November 9, 2009, pp. 14-17 and 37-41.
13. Medical Certificate issued by Dr. Batausa, records, p. 5.
14. TSN, April 23, 2010, pp. 14-16.
15. Id. at 20-22.
16. TSN, March 8, 2010, pp. 16-19.
17. Id. at 21-26.
18. TSN, March 9, 2010, pp. 11-21 and 35.
19. TSN, January 7, 2010, pp. 5-10.
20. TSN, December 7, 2009, pp. 4-9.
21. TSN, January 8, 2010, pp. 12-16.
22. CA rollo, p. 33.
23. Id. at 39.
24. Id.
25. Id. at 40.
26. Id.
27. Id. at 41.
28. Id.
29. Id. at 42.
30. Id. at 42-43.
31. Records, pp. 493-494.
32. Rollo, pp. 11-13.
33. Id. at 14.
34. Id. at 14-15.
35. Id. at 15.
36. Id. at 15-16.
37. Id. at 16.
38. CA rollo, pp. 103-104.
39. Rollo, pp. 18-20.
40. CA rollo, p. 22.
41. Id. at 23-A-24.
42. Id. at 24-25.
43. Id. at 56-58.
44. Id. at 59-60.
45. Id. at 60-61.
46. People v. Estonilo, G.R. No. 248694, October 14, 2020, citing Sec. 3 (e), Rule 122 and Sec. 13 (c), Rule 124 of the REVISED RULES OF CRIMINAL PROCEDURE.
47. Entitled "AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES." Approved: June 24, 2006.
48. Dungo v. People, 762 Phil. 630, 650-651 (2015).
49. Macad v. People, 838 Phil. 102, 118 (2018).
50. People v. Nugas, 677 Phil. 168, 177 (2011).
51. Macad v. People, supra.
52. CICL XXX, Child in Conflict with the Law v. People, G.R. No. 246146, March 18, 2021.
53. Nacario v. People, G.R. No. 222387, June 8, 2020.
54. People v. Beltran, Jr., 534 Phil. 850, 876 (2006).