EN BANC

[G.R. No. 128359. December 6, 2000.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . ROBERTO E.

DELA CRUZ , accused-appellant.

The Solicitor General for plaintiff-appellee.

Atty. Pompeyo L. Bautista for accused-appellant.

SYNOPSIS

In an information led before the Regional Trial Court of Cabanatuan City, herein
accused was charged with the crime of quali ed illegal possession of rearm and
ammunition with homicide for unlawfully and feloniously attacking one Daniel Macapagal,
by shooting the latter with the use of an unlicensed caliber .38 snub nose rearm, thereby
in icting upon him gunshot wounds on different parts of his body, which caused also his
death. During arraignment, the accused pled not guilty to the crime charged, and thereafter
trial ensued. Unmoved by the claim of self-defense invoked by the accused, the trial court
rendered judgment nding the accused guilty beyond reasonable doubt of the crime
charged and sentenced him to suffer the penalty of death. He is likewise ordered to
indemnify the heirs of the deceased victim in the sum of P50,000.00; to pay actual
damages in the sum of P65,000.00 representing burial and interment expenses; and the
sum of P2,865,600.00 representing loss of income. In his plea to the Court, accused-
appellant contended that the decision of the court a quo was bereft of factual and legal
justification.
The Court scarcely found reversible error on the part of the trial court in rejecting the
claim of self-defense. Unlawful aggression, a primordial element of self-defense, would
presuppose an actual, sudden and unexpected attack or imminent danger on the life and
limb of a person — not a mere threatening or intimidating attitude — but, most importantly,
at the time the defensive action was taken against the aggressor. True, the victim barged
into the house of accused-appellant and his live-in partner and banging at the master
bedroom door with his rearm. Accused-appellant, however, upon opening the door and
seeing the victim pointing a gun at him, was able to prevent at this stage harm to himself
by promptly closing the door. He could have stopped there. Instead, accused-appellant,
taking his .38 caliber revolver, again opened the bedroom door and brandishing his own
rearm, forthwith confronted the victim. At this encounter, accused-appellant would be
quite hardput to still claim self-defense. The trial court erred, however, in imposing the
death penalty on accused-appellant. Presidential Decree No. 1866 was already amended
by Republic Act No. 8294. Section 1, third paragraph, of the amendatory law provides that
"if homicide or murder is committed with the use of an unlicensed rearm, such use of an
unlicensed rearm shall be considered as an aggravating circumstance." The provision is
clear, and there would be no need to still belabor the matter. The decision appealed from
was modified. Accused-appellant was held guilty of homicide with the use of an unlicensed
rearm and sentenced to suffer the indeterminate penalty. The award of P2,865,600.00 for
loss of earning was reduced to P1,432,800.00.

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 SYLLABUS

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF DEFENSE; REQUISITES;

WHEN SELF-DEFENSE IS INVOKED, THE BURDEN OF EVIDENCE SHIFTS TO THE ACCUSED
TO SHOW THAT THE KILLING HAS BEEN LEGALLY JUSTIFIED. — Unmoved by the claim of
self-defense invoked by the accused, the trial court pronounced a judgment of guilt and
handed a death sentence. "WHEREFORE, premises considered, the Court nds and so
declares the accused ROBERTO DELA CRUZ guilty beyond reasonable doubt of the crime
of Quali ed Illegal Possession of Firearm and Ammunition with Homicide, which is
penalized under Presidential Decree 1866, Sec. 1, and he is hereby sentenced to suffer
death; he is, likewise ordered to indemnify the heirs of the deceased victim in the sum of
P50,000.00; to pay actual damages in the sum of P65,000.00 representing burial and
interment expenses; and the sum of P2,865,600.00 representing loss of income." When
self-defense is invoked, the burden of evidence shifts to the accused to show that the
killing has been legally justi ed. Having owned the killing of the victim, the accused should
be able to prove to the satisfaction of the court the elements of self-defense in order that
he might be able to rightly avail himself of the extenuating circumstance. He must
discharge this burden by clear and convincing evidence. When successful, an otherwise
felonious deed would be excused mainly predicated on the lack of criminal intent of the
accused. Self-defense requires that there be (1) an unlawful aggression by the person
injured or killed by the offender, (2) reasonable necessity of the means employed to
prevent or repel that unlawful aggression, and (3) lack of su cient provocation on the part
of the person defending himself. All these conditions must concur. The Court scarcely
finds reversible error on the part of the trial court in rejecting the claim of self-defense.
2. ID.; ID.; ID.; UNLAWFUL AGGRESSION; PRESUPPOSED AN ACTUAL, SUDDEN
AND UNEXPECTED ATTACK OR IMMINENT DANGER ON THE LIFE AND LIMB OF A
PERSON, NOT A MERE THREATENING OR INTIMIDATING ATTITUDE. — Unlawful
aggression, a primordial element of self-defense, would presuppose an actual, sudden and
unexpected attack or imminent danger on the life and limb of a person — not a mere
threatening or intimidating attitude — but, most importantly, at the time the defensive
action was taken against the aggressor. True, the victim barged into the house of accused-
appellant and his live-in partner and, banging at the master bedroom door with his rearm,
he yelled, "come out." Accused-appellant, however, upon opening the door and seeing the
victim pointing a gun at him, was able to prevent at this stage harm to himself by promptly
closing the door. He could have stopped there. Instead, accused-appellant, taking his .38
caliber revolver, again opened the bedroom door and, brandishing his own rearm,
forthwith confronted the victim. At this encounter, accused-appellant would be quite hard
put to still claim self-defense.
3. ID.; ILLEGAL POSSESSION OF FIREARM; ELEMENTS; LACK OF ANIMUS
POSSIDENDI; NOT PROVEN IN CASE AT BAR. — The elements of illegal possession of
rearm are (1) the existence of the subject rearm, (2) the ownership or possession of the
rearm, and (3) the absence of the corresponding license therefor. Accused-appellant
claims that he did not have animus possidendi in the use and possession of the .38 caliber
revolver since he has used it for just a " eeting moment" to defend himself. This assertion
is not supported by the evidence. Apparently, the subject revolver has all the while been
kept in the house of accused-appellant and his live-in partner.ECaAHS

4. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; PRESENT IN

CASE AT BAR. — The mitigating circumstance of voluntary surrender should be considered
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 in favor of accused-appellant. Immediately following the shooting incident, he instructed
his live-in partner to call the police and report the incident. He waited for the arrival of the
authorities and readily acknowledge before them his having been responsible for the
shooting of the victim.

DECISION

VITUG , J : p

For automatic review is the decision, dated 27 November 1996, of the Regional Trial
Court, Branch 27, of Cabanatuan City, which has sentenced to death Roberto E. de la Cruz
for "Qualified Illegal Possession of Firearm and Ammunition with Homicide."
The information charging the accused with the offense, to which he pled "not guilty"
when arraigned, read:
"That on or about the 27th day of May, 1996, in the City of Cabanatuan,
Republic of the Philippines and within the jurisdiction of this Honorable Court, the
abovenamed accused, with intent to kill, did then and there, wilfully, unlawfully
and feloniously attack, assault and use personal violence upon the person of one
DANIEL MACAPAGAL, by shooting the latter with the use of an unlicensed Caliber
.38 snub nose rearm, with Serial No. 120958, thereby in icting upon him
gunshot wounds on different parts of his body, which caused also his death." 1

The facts relied upon by the trial court in its judgment were narrated by the O ce of
the Solicitor General in the People's brief.
"The victim Daniel Macapagal, a married man, had been a live-in partner of
prosecution witness Ma. Luz Perla San Antonio for about two to three years
before San Antonio took appellant Roberto dela Cruz, widower, as lover and live-in
partner. At the time of the incident on May 27, 1996, appellant and San Antonio
were living in a house being rented by San Antonio at 094 Valino District,
Magsaysay Norte, Cabanatuan City (pp. 2-3, TSN, July 6, 1996).
"At around 6:00 o'clock in the evening on May 27, 1996, San Antonio and
appellant were resting in their bedroom when they heard a car stop in front of
their house and later knocks on their door. San Antonio opened the front door and
she was confronted by Macapagal who made his way inside the house holding a
gun in his hand, despite San Antonio's refusal to let him in. He seemed to be
looking for something or somebody as Macapagal walked passed San Antonio
and inspected the two opened bedrooms of the house. He then went to the closed
bedroom where appellant was and banged at the door with his gun while yelling
'Come out. Come out' (p. 4, Ibid.). Appellant then opened the door but he was
greeted by Macapagal's gun which was pointed at him. Appellant immediately
closed the door while Macapagal continued banging at it. When appellant again
opened the door moments later, he was himself armed with a .38 caliber revolver.
The two at that instant immediately grappled for each other's rearm. A few
moments later shots were heard. Macapagal fell dead on the floor.

"Appellant told San Antonio to call the police on the phone. After a few
minutes police o cers arrived at the scene. They saw the dead body of
Macapagal slumped on the oor holding a gun. San Antonio met them on the
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 door and appellant was by then sitting. He stood up to pick his .38 caliber revolver
which he surrendered to SPO3 Felix Castro, Jr. Appellant told the police that he
shot Macapagal in self-defense and went with them to the police station.
"Dr. Jun Concepcion, Senior Medical O cer of the Cabanatuan City
General Hospital, performed an autopsy on the cadaver of Macapagal and
submitted a report thereon (Exhibit H). Macapagal sustained four (4) gunshot
wounds. Three of the wounds were non-penetrating or those that did not
penetrate a vital organ of the human body. They were found in the upper jaw of
the left side of the face, below the left shoulder and the right side of the waist.
Another gunshot wound on the left side of the chest penetrated the heart and
killed Macapagal instantly.

"It was later found by the police that the rearm used by Macapagal was a
9mm caliber pistol. It had one magazine loaded with twelve (12) live ammunition
but an examination of the gun showed that its chamber was not loaded.
"Macapagal had a license to carry said rearm. On the other hand,
appellant, who denied ownership of the .38 caliber revolver he used, had no
license therefor." 2

Unmoved by the claim of self-defense invoked by the accused, the trial court
pronounced a judgment of guilt and handed a death sentence.
"WHEREFORE, premises considered, the Court nds and so declares the
accused ROBERTO DELA CRUZ guilty beyond reasonable doubt of the crime of
Quali ed Illegal Possession of Firearm and Ammunition with Homicide, which is
penalized under Presidential Decree 1866, Sec. 1, and he is hereby sentenced to
suffer death; he is, likewise ordered to indemnify the heirs of the deceased victim
in the sum of P50,000.00; to pay actual damages in the sum of P65,000.00
representing burial and interment expenses; and the sum of P2,865,600.00
representing loss of income." 3

In his plea to this Court, accused-appellant submits that the decision of the court a
quo is bereft of factual and legal justification.
When self-defense is invoked, the burden of evidence shifts to the accused to show
that the killing has been legally justi ed. 4 Having owned the killing of the victim, the
accused should be able to prove to the satisfaction of the court the elements of self-
defense in order that he might be able to rightly avail himself of the extenuating
circumstance. 5 He must discharge this burden by clear and convincing evidence. When
successful, an otherwise felonious deed would be excused mainly predicated on the lack
of criminal intent of the accused. Self-defense requires that there be (1) an unlawful
aggression by the person injured or killed by the offender, (2) reasonable necessity of the
means employed to prevent or repel that unlawful aggression, and (3) lack of su cient
provocation on the part of the person defending himself. 6 All these conditions must
concur. 7
Here, the Court scarcely nds reversible error on the part of the trial court in
rejecting the claim of self-defense.
Unlawful aggression, a primordial element of self-defense, would presuppose an
actual, sudden and unexpected attack or imminent danger on the life and limb of a person
— not a mere threatening or intimidating attitude 8 — but, most importantly, at the time the
defensive action was taken against the aggressor. True, the victim barged into the house
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 of accused-appellant and his live-in partner and, banging at the master bedroom door with
his rearm, he yelled, "come out." Accused-appellant, however, upon opening the door and
seeing the victim pointing a gun at him, was able to prevent at this stage harm to himself
by promptly closing the door. He could have stopped there. Instead, accused-appellant,
taking his .38 caliber revolver, again opened the bedroom door and, brandishing his own
rearm, forthwith confronted the victim. At this encounter, accused-appellant would be
quite hardput to still claim self-defense. 9
The second element of self-defense would demand that the means employed to
quell the unlawful aggression were reasonable and necessary. The number of the wounds
sustained by the deceased in this case would negate the existence of this indispensable
component of self-defense. 1 0 The autopsy report would show that the victim sustained
four gunshot wounds —
"1. Gunshot wound on the (L) shoulder as point of entry with trajectory
toward the (L) supra-scapular area as point of exit (through-through);

"2. Gunshot wound on the abdomen ® side laterally as point of entry

(+) for burned gun powder super cially with trajectory towards on the same side
as point of exit, through-through;

"3. Gunshot wound on the anterior chest (L) mid-clavicular line, level
5th ICS as point of entry with trajectory towards the (L) ank as point of exit
(through-through) Internally: penetrating the heart (through-through) anterior then
posterior then (L) hemidia-prhagm and stomach; and HIDCTA

"4. Lacerated wound linear 1/2 inch in length (L) cheek area" 1 1 —

which would, in fact, indicate a determined effort to kill. 1 2

It would be essential, finally, for self-defense to be aptly invoked that there be lack of
su cient provocation on the part of the person defending himself. When accused-
appellant, opening the bedroom door the second time, confronted, instead of merely
taking precautionary measures against, the victim with his own gun he had taken from the
cabinet, accused-appellant could no longer correctly argue that there utterly was no
provocation on his part.
The elements of illegal possession of rearm are (1) the existence of the subject
rearm, (2) the ownership or possession of the rearm, and (3) the absence of the
corresponding license therefor. 1 3
Accused-appellant claims that he did not have animus possidendi in the use and
possession of the .38 caliber revolver since he has used it for just a " eeting moment" to
defend himself. This assertion is not supported by the evidence. Apparently, the subject
revolver has all the while been kept in the house of accused-appellant and his live-in
partner. Accused-appellant himself has thusly testified:
"Q When for the first time did you see that firearm inside the drawer of
Candy?

"A Since the last week of April, sir.

"Q Did you ask Candy why she was in possession of that gun?

"A Once I opened her drawer and I asked her who owns that gun, sir.

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 "Q And what was her reply as to who owns that gun?

"A According to her that firearm was used as payment by a group of persons
who were her customers at the Videoke, sir.
"Q And what else did Candy tell you about that firearm, if you know?

"A She also told me that we can use that gun for protection, sir." 1 4

The trial court has erred, however, in imposing the death penalty on accused-
appellant. Presidential Decree No. 1866 is already amended by Republic Act No. 8294.
Section 1, third paragraph, of the amendatory law provides that "if homicide or murder is
committed with the use of an unlicensed rearm, such use of an unlicensed rearm shall
be considered as an aggravating circumstance." The provision is clear, and there would be
no need to still belabor the matter. 1 5
The mitigating circumstance of voluntary surrender should be considered in favor of
accused-appellant. Immediately following the shooting incident, he instructed his live-in
partner to call the police and report the incident. He waited for the arrival of the authorities
and readily acknowledged before them his having been responsible for the shooting of the
victim. 1 6
The aggravating circumstance of the use of unlicensed rearm being effectively
offset by the mitigating circumstance of voluntary surrender, 1 7 the penalty prescribed by
law for the offense should be imposed in its medium period. 1 8 Article 249 of the Revised
Penal Code prescribes the penalty of reclusion temporal in the crime of homicide, the
range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the
Indeterminate Sentence Law, the maximum of the penalty shall be taken from the medium
period of reclusion temporal, i.e., from fourteen (14) years, eight (8) months, and one (1)
day to seventeen (17) years and four (4) months, while the minimum shall be taken from
the penalty next lower in degree, which is prision mayor, anywhere in its range of from six
(6) years and one (1) day to twelve (12) years.
The amount of P2,865,600.00 awarded by the trial court as damages for loss of
earning capacity should be modi ed. The testimony of the victim's surviving spouse,
Marina Villa Juan Macapagal, on the earning capacity of her husband Daniel Macapagal
sufficiently established the basis for making possible such an award. 1 9 The deceased was
44 years old at the time of his death in 1996, with a gross monthly income of P9,950.00. 2 0
In accordance with the American Expectancy Table of Mortality adopted in several cases
2 1 decided by this Court, the loss of his earning capacity should be calculated thusly:

Gross less living

Net earning capacity (x) = life expectancy x annual - expenses
income (50% of gross
annual income)

or

x= 2(80-44) x [119,400.00 - 59,700.00]

———
3
= 24 x 59,700.00
= P1,432,800.00
============
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 WHEREFORE, the decision appealed from is MODIFIED. Accused-appellant
ROBERTO DELA CRUZ y ESGUERRA is hereby held guilty of HOMICIDE with the use of an
unlicensed rearm, an aggravating circumstance that is offset by the mitigating
circumstance of voluntary surrender, and he is accordingly sentenced to an indeterminate
penalty of nine (9) years and one (1) day of prision mayor as minimum to sixteen (16)
years and one (1) day of reclusion temporal as maximum. The award of P2,865,600.00 for
loss of earning is reduced to P1,432,800.00. In other respects, the judgment of the trial
court is AFFIRMED.
In the service of his sentence, accused-appellant shall be credited with the full time
of his preventive detention if they have agreed voluntarily and in writing to abide by the
same disciplinary rules imposed upon convicted prisoners pursuant to Article 29 of the
Revised Penal Code. IDATCE

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Yñares-Santiago, and De Leon, Jr., JJ., concur.

Footnotes
1. Rollo, p. 11.
2. Rollo, pp. 125-127.
3. Rollo, p. 38.
4. People vs. Galapin, 293 SCRA 474.
5. People vs. Baniel, 275 SCRA 472.
6. See People vs. Demonteverde, 290 SCRA 175.
7. Art. 11, par. 1, Revised Penal Code.
8. People vs. De Gracia, 264 SCRA 200.
9. Unlawful aggression is, of course, primordial; it must be real, i.e., an actual, sudden, and
unexpected attack or an imminent danger thereof, and not just a threatening or
intimidating attitude. (People vs. Maalat, 275 SCRA 206.)
10. People vs. Babor, 262 SCRA 359.
11. Rollo, p. 34.
12. People vs. Maceda, 197 SCRA 499.
13. People vs. Bergante, 286 SCRA 629.
14. TSN, 17 October 1969, p. 20.
15. People vs. Molina, 292 SCRA 742.
16. The elements of voluntary surrender are that (1) the offender has not been actually
arrested; (2) he surrender himself to a person in authority or an agent of a person in
authority; and (3) his surrender was voluntary (People vs. Medina, 286 SCRA 44).
17. Presidential Decree No. 1866 not having provided otherwise.
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 18. Article 64, Revised Penal Code.
19. People vs. Verde, 302 SCRA 690; Pantranco North Express, Inc. vs. Baesa, 179 SCRA
384.
20. TSN of Marina Macapagal, 15 August 1996, p. 10.

21. People vs. Verde, 302 SCRA 690; Sanitary Steam Laundry, Inc. vs. Court of Appeals, 300
SCRA 20; Metro Manila Transit Corp. vs. Court of Appeals, 298 SCRA 495; Negros
Navigation Co., Inc. vs. Court of Appeals, 281 SCRA 534; Villa-Rey Transit, Inc. vs. Court
of Appeals, 31 SCRA 511.

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