SECOND DIVISION

[G.R. No. 113940. February 15, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CIELITO

BULURAN y RAMIREZ and LEONARDO VALENZUELA y
CASTILLO, accused-appellants.Scjuris

DECISION

QUISUMBING, J.:

On appeal is the decision dated February 4, 1994, of the Regional Trial Court of
Quezon City, Branch 95, convicting accused-appellants of the crime of murder and
sentencing them to suffer the penalty of reclusion perpetua, to pay solidarily the heirs
of the deceased the amount of P50,000.00 as indemnity, and P8,000.00 as actual
damages, and also to pay proportionately the costs.

Of the four suspected perpetrators of the crime, only two were arrested and tried,
namely Cielito Buluran and Leonardo Valenzuela, now the appellants. The other two,
Reynaldo Danao and Jaime Danao, remain at-large.

The facts, as gleaned from the records, are as follows:

On May 16, 1993, shortly before 7:15 in the evening, the Meyer family was
celebrating the birthday of their mother at their residence in Area 4, Barangay
Amaparo, Capri, Novaliches, Quezon City. It appears that Dominador Meyer, Jr., had
an altercation with a cousin. The victim, Edilberto Meyer, Sr., tried to pacify them,
and brought Dominador outside the house to cool-off. However, while the victim and
Dominador, were talking outside their residence, Reynaldo Danao approached them
and warned them not to make any trouble because the community was celebrating
its fiesta. The victim denied making any trouble and said that the matter was a family
problem. Suddenly, Reynaldo boxed the victim who also retaliated with a fistblow.
The two exchanged blows and grappled with each other. Reynaldo managed to run
away but returned after about two minutes. Jurissc

Now, accompanied by his barkadas or gangmates (Cielito Buluran, Leonardo

Valenzuela and Jaime Danao), Reynaldo was armed with a 12-inch stainless knife.
Cielito had also a knife. Leonardo and Jaime each carried slingshots, with sharp-
pointed arrows made of five-inch nails with abaca tails. Without warning, Reynaldo
stabbed the victim at the left side of his lower back. All the while, his three
companions were pointing and brandishing their weapons at the Meyer brothers and
the other people present in order to prevent them from interfering. Cielito poked his
knife at the Meyer brothers and stood guard to prevent other people from rendering
help to the victim. Leonardo likewise held his slingshot against the Meyer brothers
and prevented people from going near the victim by pointing his loaded slingshot at
them. Thereafter, the four barkadas fled. The victim died that same night. [1]
On May 20, 1993, appellant Cielito Buluran and three (3) John Does were charged
with the crime of murder under the following Information:[2]

"I N F O R M A T I O N

"The undersigned accuses CIELITO BULURAN Y RAMIREZ of the

crime of Murder, committed as follows:

"That on or about the 16th day of May, 1993, in Quezon City,

Philippines, the above-named accused, conspiring, confederating with
three (3) other persons, whose true identities, whereabouts and other
personal circumstances of which have not yet been ascertained, and
mutually helping one another, did then and there, wilfully, unlawfully
and feloniously with intent to kill, qualified with treachery and evident
premeditation, assault and employ personal violence upon the person
of one EDILBERTO MEYER, SR Y JAVIER, by then and there
stabbing him with the use of a deadly weapon (knife) hitting him at his
back, thereby inflicting upon him serious and mortal wounds which was
the direct and immediate cause of his untimely death, to the damage
and prejudice of the heirs of the said Edilberto Meyer, Sr. y Javier.

"CONTRARY TO LAW. Misjuris

"Quezon City, Philippines, May 19, 1993.

(SGD.) WILFREDO L. MAYNIGO

Assistant City Prosecutor"

The Information was later amended[3] when Leonardo Valenzuela was identified as
one of the assailants. Upon arraignment, both accused entered pleas of not guilty. [4]

During trial, the prosecution presented three eyewitnesses to the stabbing incident,
namely Artemio Avendaño, Jacinto Castillo, and Gloria Castillo.[5] All were neighbors
of the victim. The prosecution likewise presented PO1 Roberto C. San Miguel of
Station 2, Sangang Daan, Novaliches, Quezon City, who "invited" appellant Buluran
to the precinct,[6] and Chief Inspector Florante F. Baltazar, the Medico-Legal Officer
who conducted the autopsy on the victim. Baltazar testified that the cause of death
was the "penetrating stab wound at the posterior left lumbar region."[7] The victim’s
widow, Mrs. Erlinda C. Meyer, testified as to the actual damages sustained as a
result of the death of her husband.[8]

For the defense, appellants denied any participation in the affray and testified that at
the time of the incident, they were both asleep in their respective houses. [9] The father
of appellant Buluran confirmed that his son was asleep in their house from 5:00 in
the afternoon until the policemen came to arrest him at around 8:00 that same
evening.[10] Manuel Valenzuela testified that his brother Leonardo, appellant herein,
was drunk and asleep inside their house from 5:00 in the afternoon until the following
day. Contrary to the version of the prosecution, Manuel testified that he saw a fight
erupt between Reynaldo Danao on one hand, and the victim, one "Boyet," and one
"Amang," on the other hand. The victim, Boyet and Amang stabbed Reynaldo three
times with their knives. Reynaldo retaliated by stabbing the victim and fleeing
afterwards. Thereafter, people from the Meyer house came out and started throwing
empty bottles in front of the store, causing all the bystanders to scamper away.
Manuel was even hit by a flying bottle at his left eyebrow, which left a scar, because
he was mistaken for his brother. At around 7:45 a.m., Manuel tried to wake up his
brother, appellant Leonardo Valenzuela, from his drunken stupor but the latter would
not budge. Thereafter, Manuel went to the house of appellant Buluran, but Buluran
was also drunk and asleep at that time.[11]Jjlex

To bolster their version, the defense presented Dr. Feliciano Bornales, who testified
that two (2) days after the incident, or on May 18, 1993, he treated one Reynaldo
Danao for two stab wounds and an incised wound. Dr. Bornales testified that did not
know who inflicted such wounds.[12]

On February 4, 1994, the trial court, finding conspiracy and treachery, rendered
judgment[13] convicting appellants of murder. The dispositive portion of the judgment
reads:

"WHEREFORE, the Court finds both accused Cielito Buluran y

Ramirez and Leonardo Valenzuela y Castillo guilty beyond reasonable
doubt of the crime of murder charged herein, defined and punished in
Art. 248 of the Revised Penal Code, as principals in the commission
thereof and, accordingly, they are hereby sentenced each to suffer the
penalty of reclusion perpetua; jointly and severally to indemnify the
heirs of the deceased Edilberto Meyer, Sr. y Javier in the sum of eight
thousand pesos as actual damages and in the further sum of fifty
thousand pesos as death indemnity; and, to pay the proportionate
costs, without prejudice to the application of Rep. Act No. 6127 in favor
of each of them.

"SO ORDERED.

"Quezon City, Philippines, February 04, 1994."[14]

Hence, the present appeal. Appellants assign the following errors: Newmiso

I. THE COURT ERRED BY FAILING TO INQUIRE WHETHER

APPELLANTS WERE REPRESENTED BY COUNSEL IN THE
CUSTODIAL INVESTIGATION CONDUCTED BY THE POLICE
WHICH LATER ON PRESENTED THEM FOR INQUEST TO THE
CITY PROSECUTOR OF QUEZON CITY;

II. THE COURT ERRED IN FAILING TO CONSIDER THE FACT THAT

APPELLANTS WERE ARRESTED BY THE POLICE, WITHOUT ANY
PRELIMINARY INVESTIGATION BY THE CITY PROSECUTOR;

III. THE COURT ERRED IN CONVICTING THE APPELLANTS WHO

INSTEAD ARE ENTITLED TO ACQUITTAL ON GROUNDS OF
VIOLATION OF THEIR CONSTITUTIONAL RIGHTS AND
 PROCEDURAL RIGHTS TO DUE PROCESS WHICH DIVESTED THE
COURT OF JURISDICTION.

In their consolidated brief, appellants contend that they were merely made the
scapegoats for the killing. They insist they have no previous police record and should
be presumed as law-abiding citizens. Moreover, appellants argue that their
warrantless arrest and the lack of preliminary investigation render the criminal
proceedings against them illegal for violation of their constitutional rights.

The Office of the Solicitor General, for the State, contends that conspiracy is the
rope that binds appellants together, even though only Reynaldo Danao actually
stabbed the victim. Further, any alleged irregularity in their arrest or the lack of
preliminary investigation cannot be raised for the first time on appeal, since these
irregularities should have been properly raised before arraignment. Acctmis

In our view, the issues here involve the alleged irregularity of appellants’ arrest; the
alleged violation of their constitutional rights during custodial investigation for lack of
counsel; and the alleged invalidity of the proceedings in the trial court sans
preliminary investigation. Considering these issues, we hold that:

First. Appellants are estopped from questioning the validity of their respective arrests
since they never raised this issue before arraignment. Any objection involving a
warrant of arrest or the acquisition of jurisdiction over the person of an accused must
be made before he enters his plea, otherwise the objection is deemed waived. [15]

Second. There is no violation of the constitutional rights of the accused during

custodial investigation since neither one executed an extrajudicial confession or
admission. In fact, the records[16]show that appellant Cielito Buluran opted to remain
silent during the custodial investigation. Any allegation of violation of rights during
custodial investigation is relevant and material only to cases in which an extrajudicial
admission or confession extracted from the accused becomes the basis of their
conviction.[17] In this case, the basis of the conviction by the trial court was the
testimonies of the three eyewitnesses, Artemio Avendaño, Jacinto Castillo, and
Gloria Castillo. It is noteworthy that appellants never attempted to impeach their
testimonies during trial. Neither do they assail the credibility of said witnesses on
appeal. Misact

However, in relation to the view of the Office of the Solicitor General that the right to
counsel during custodial investigation can be waived by reason of failure to make a
timely objection before plea,[18] we must stress that there can be no valid waiver of the
right to counsel unless such waiver is in writing and in the presence of counsel as
mandated by Article III, Section 12 of the 1987 Constitution and the pertinent
provisions of Republic Act No. 7438.[19]

Third. The failure to accord appellants their right to preliminary investigation did not
impair the validity of the information nor affect the jurisdiction of the trial
court.[20] While the right to preliminary investigation is a substantive right and not a
mere formal or technical right of the accused, nevertheless, the right to preliminary
investigation is deemed waived when the accused fails to invoke it before or at the
time of entering a plea at arraignment.[21] It appearing that appellants only raised the
issue of lack of preliminary investigation during appeal, their right to a preliminary
investigation was deemed waived when they entered their respective pleas of not
guilty.

Pursuant to the doctrine that an appeal in a criminal case opens the whole case for
review (including penalty, indemnity and damages),[22] we shall now consider whether
appellants were correctly found guilty of murder beyond reasonable doubt.

Unquestionably, and appellants do not allege otherwise, conspiracy attended the

killing of the victim. Conspiracy to exist does not require an agreement for an
appreciable period prior to the occurrence.[23] From the legal standpoint, conspiracy
exists if, at the time of the commission of the offense, the accused had the same
purpose and were united in its execution.[24] In this case, the presence of appellants,
both armed with deadly weapons, at the locus criminis indubitably shows their
complicity in the criminal design of Reynaldo Danao to kill the victim. Sdjad

However, we find that no treachery attended the killing. On numerous occasions, we

have held that where a killing was preceded by an argument or quarrel, then the
qualifying circumstance of treachery can no longer be appreciated since the victim
could be said to have been forewarned and could anticipate aggression from the
assailants.[25] The previous boxing incident between the victim and Reynaldo Danao
must have already put the victim on guard for further aggression or retaliation by
Reynaldo Danao. Hence, treachery could not be appreciated as a qualifying
circumstance in this case.

Moreover, the aggravating circumstance of evident premeditation alleged by the

prosecution was not proved clearly and convincingly.[26] Considering that the attack
was made about two minutes after the initial altercation,[27] it cannot be said that there
was sufficient lapse of time between such determination to commit the crime and its
execution so as to allow the assailants to reflect upon the consequences of their
actions.[28]

We find, however, that the aggravating circumstance of abuse of superior strength

attended the killing. "To appreciate abuse of superior strength as an aggravating
circumstance, what should be considered is not that there were three, four or more
assailants of one victim, but whether the aggressors took advantage of their
combined strength in order to consummate the offense. It is therefore necessary to
show that the attackers cooperated in such a way as to secure advantage of their
superiority in strength."[29] In this case, appellants and their companions purposedly
gathered together and armed themselves to take advantage of their combined
strength to ensure that Reynaldo Danao would be able to kill the victim without any
interference from other bystanders. However, not having been alleged in the
Information, abuse of superior strength can only be considered as a generic
aggravating circumstance.[30]Sppedsc

Absent any qualifying circumstance, appellants should therefore be held liable only
for the crime of homicide, attended by one aggravating circumstance. Consequently,
the penalty should only be the penalty for homicide under Article 249 of the Revised
Penal Code, which is reclusion temporal, and not reclusion perpetua. Applying the
Indeterminate Sentence Law, each of the appellants should be sentenced to 8 years
and one (1) day of prision mayor as minimum to 18 years of reclusion temporal as
maximum.

As to the amount of damages, prevailing jurisprudence sets the indemnity for death
in the amount of P50,000.00, which can be awarded without need of further proof
other than the death of the victim.[31] The amount of P8,000.00 as actual damages
should likewise be affirmed, the wife having presented a receipt (Exhibit "C") to
support such claim.[32] In addition, there being one aggravating circumstance,
exemplary damages in the amount of P20,000.00[33] may be awarded, pursuant to
Article 2230 of the New Civil Code.

WHEREFORE, the appealed decision is AFFIRMED with MODIFICATIONS.

Accused-appellants are hereby found guilty of the crime of Homicide, and sentenced
to an indeterminate penalty of eight (8) years and one (1) day of prision mayor as
minimum to eighteen (18) years of reclusion temporal as maximum, and to pay
jointly and severally, the heirs of the deceased, the amount of P50,000.00 as
indemnity, P8,000.00 as actual damages, and P20,000 as exemplary damages.
Costs against appellants. Calrsc

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

[1]
TSN, September 14, 1993, pp. 11-13; TSN, September 16, 1993, pp. 13, 15, 21; TSN, November 4, 1993, p.
6; Exhibit "I", Referral for Inquest.
[2]
Records, p. 1.
[3]
Id. at 14.
[4]
Order dated July 15, 1993, Records, pp. 38-39.
[5]
Gloria Castillo was presented as a rebuttal witness.
[6]
TSN, September 13, 1993, pp.5-6.
[7]
TSN, September 17, 1993, p. 6.
[8]
TSN, September 16, 1993, pp. 4-5.
[9]
TSN, October 7, 1993, pp. 8-9; TSN, October 14, 1993, pp. 7-8.
[10]
TSN, September 30, 1993, p. 4.
[11]
TSN, September 28, 1993, pp. 6-9, 12-14.
[12]
TSN, November 9, 1993, pp. 3-4.
[13]
Records, p. 107.
[14]
Id. at 110.
[15]
People v. Patalin, Jr. et. al., G.R. No. 125539, July 27, 1999, p. 20; People v. Tidula, 292 SCRA 596, 611
(1998); People v. Salvatierra, 276 SCRA 55, 63 (1997); Padilla v. Court of Appeals, 269 SCRA 402, 417
(1997).
[16]
Records, p. 4.
[17]
People v. Andres, 296 SCRA 318, 337 (1998); People v. Sabalones, 294 SCRA 751, 790 (1998).
[18]
Rollo, p. 142.
[19]
An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the
Duties of the Arresting, Detaining, and Investigating Officers and and Providing Penalties for Violations
thereof. See also People v.Muleta, G.R. No. 130189, June 25, 1999, pp. 19-20; People v. Bacor, G.R. No.
122895, April 30, 1999, p. 15.
[20]
Gonzales v. Court of Appeals, 277 SCRA 518, 525 (1997); People v. Villanueva, 265 SCRA 318, 322 (1996);
Go v. Court of Appeals, 206 SCRA 138, 154 (1992).
[21]
Ibid.
[22]
People v. Villablanca, G.R. No. 89662, October 1, 1999, p. 9; People v. Rabanag, G.R. No. 130010, May 26,
1999; People v. Medina, 300 SCRA 98, 114 (1998); Sumalpong v. Court of Appeals, 268 SCRA 764, 775
(1997); also Section 11 of Rule 124 of the Revised Rules of Court.
[23]
People v. Patalinghug, G.R. No. 125814-15, November 16, 1999, p. 18; People v. Aquino, G.R. No. 126047,
September 16, 1999, p. 5.
[24]
Ibid.
[25]
People v. Villanueva, 265 SCRA 216, 225 (1996); People v. Macalino, 177 SCRA 185, 194 (1989).
[26]
People v. Basao, G.R. No. 128286, July 20, 1999; People v. Pallarco, 288 SCRA 151, 169-170 (1998).
People v. Sumalpong, 284 SCRA 464, 490 (1998).
[27]
TSN, September 16, 1993, p. 21.
[28]
People v. Sambulan, 289 SCRA 500, 515-516 (1998).
[29]
People v. Platilla, G.R. No. 126123, March 9, 1999, p. 19.
[30]
People v. Platilla, G.R. No. 126123, March 9, 1999, p. 20; People v. Valeriano, 226 SCRA 694, 708 (1993);
People v. Entes, 103 SCRA 162, 168 (1981).
[31]
People v. Floro, G.R. No. 120641, October 7, 1999, p. 12.
[32]
People v. Panaga, G.R. No. 125967-70, May 5, 1999, p. 16.
[33]
People v. Bahenting, G.R. No. 127659, February 24, 1999, p. 12.

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