EN BANC

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

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO E. DELA CRUZ, accusedappellant.
DECISION
VITUG, J.:
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, willfully, 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 firearm, with Serial No.
120958, thereby inflicting 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 Office of the
Solicitor General in the Peoples brief.
The victm 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 de la 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 oclock 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
Antonios 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 close bedroom where the 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 Macapagals 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 others firearm. 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
officers arrived at the scene. They saw the dead body of Macapagal slumped on the floor
holding a gun. San Antonio met them on the 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 Officer 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 firearm 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 firearm. On the other hand, appellant, who denied
ownership of the .38 caliber revolver he used, had no license therefore.[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 finds and so declares the accused
ROBERTO DELA CRUZ guilty beyond reasonable doubt of the crime of Qualified 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 justified.[4] Having owned the killing of the victim, the
accused should be able to prove to the satisfaction of the court the elements of selfdefense in order that the 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
sufficient provocation on the part of the person defending himself. [6] All these
conditions must concur.[7]
Here, the Court scarcely finds 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

of accused-appellant and his live-in partner and, banging at the master bedroom door
with his firearm, 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, accusedappellant, taking his .38 caliber revolver, again opened the bedroom door and,
brandishing his own firearm, forthwith confronted the victim. At this encounter, accusedappellant 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.[10] 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 to exit (through-through);
2. Gunshot wound on the abdomen side laterally as point of entry (+) for burned gun
powder superficially with trajectory towards on the same side as point of exit, throughthrough;
3. Gunshot wound on the anterior chest (L) mid-clavicular line, level 5th ICS as point of
entry with trajectory towards the (L) flank as point of exit (through-through) Internally:
penetrating the heart (through-through) anterior then posterior then (L) hemidia prhagm
and stomach; and
4. Lacerated wound linear inch in length (L) cheek area[11] which would, in fact, indicate a determined effort to kill.[12]
It would be essential, finally, for self-defense to be aptly invoked that there be lack of
sufficient provocation on the part of the person defending himself. When accusedappellant, 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 firearm are (1) the existence of the subject firearm,
(2) the ownership or possession of the firearm, and (3) the absence of the corresponding
license therefor.[13]
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 fleeting 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.
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.[14]
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 firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance. The provision is clear, and there would be
no need to still belabor the matter.[15]
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 acknowledge before them his having been responsible for the
shooting of the victim.[16]
The aggravating circumstance of the use of unlicensed firearm being effectively offset by
the mitigating circumstance of voluntary surrender,[17] the penalty prescribed by law for
the offense should be imposed in its medium period.[18] 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 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 modified. The testimony of the victims 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.[19] The deceased was 44 years
old at the time of his death in 1996, with a gross monthly income of P9,950.00.[20] In
accordance with the American Expectancy Table of Mortality adopted in several
cases[21] 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
x = 24 x 59,700.00
x = P1,432,800.00
===========
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
firearm, 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 the same
disciplinary rules imposed upon convicted prisoners pursuant to Article 29 of the Revised
Penal Code.
SO ORDERED.