PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, -VERSUS- NESTOR BENDECIO Y

VIEJO ALIAS "TAN", ACCUSED-APPELLANT.

DECISION

LAZARO-JAVIER, J.:

The Case

This appeal assails the Decision1 dated August 17, 2017 of the Court of Appeals in CA-G.R. CR No.
39046 affirming the verdict of conviction against appellant Nestor Bendecio y Viejo alias "Tan" for
the complex crime of attempted murder with murder.

Antecedents

The Charge

Appellant Nestor Bendecio y Viejo alias "Tan" was charged with the complex crime of attempted
murder with murder, viz.:

That on or about the 24th day of December, 2011, in the City of Muntinlupa, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, with intent to kill armed with a
hand gun with treachery suddenly attacked one GERRY MARASIGAN Y CAMPIT, when he did then
and there willfully, unlawfully and feloniously fire a shot with his revolver at the latter without warning,
which means was consciously adopted by the accused to ensure impunity, thus commencing the
commission of the crime of murder, directly by overt acts but nevertheless did not perform all the
acts of execution which should have produced the crime of murder by reason of cause or causes
other than his own spontaneous desistance, that is, the accused missed his aim and hit instead
another victim JONABELLE MARASIGAN a seven (7) year old minor, born on November 1, 2004
whose minority is equivalent to employing treachery on the part of the herein accused, thereby
inflicting upon the latter fatal wounds which directly caused her death, to the damage and prejudice
of her surviving heirs.

Contrary to law.2

On arraignment, appellant pleaded not guilty.3 Trial ensued.

During the trial, Gerry Marasigan and Princess Marasigan testified for the prosecution. On the other
hand, appellant was the lone witness for the defense.

Prosecution's Version

Gerry Marasigan testified that on December 24, 2011, around midnight, a friend invited him to a
drinking spree at the latter's home. He obliged and joined the drinking spree until his wife came to
fetch him. On their way out, he bumped into appellant whom he recognized as his mother's
neighbor. Appellant asked him "Anong problema?" He replied: "Kuya Nestor, asawa ko 'to, hindi mo
na ba ako nakikilala?" Appellant rebuffed "Hindi, bastos ka eh."

He no longer paid attention to appellant and proceeded to walk home with his wife. Back in their
home, he was closing the front door when he noticed appellant standing right outside the doorway.
He was a mere arm's length away from appellant when suddenly, the latter drew a gun, aimed at
him, and fired. But it was not he who got hit, instead it was his seven (7)-year-old daughter Jonabel
and his sister Princess. Jonabel was fatally hit. He immediately brought Jonabel to the hospital but
she died the following day.

He was not a friend, but a mere acquaintance of appellant. They never had any prior altercation. 4

Princess Marasigan, Gerry's sister, testified that on the day of the incident, she and her niece
Jonabel were inside Gerry's house in Alabang, Muntinlupa. Around 11 o'clock in the evening, Gerry
and his wife hurriedly went inside their house. She stood up and, to her surprise, saw appellant
holding a gun and firing it in Gerry's direction. She clearly saw appellant with a gun in hand because
of the light by the front door.

When they heard the shot, she and her niece Jonabel hid inside the bathroom. Only then did she
realize that they were both bleeding. Appellant only fired once, albeit the single bullet pierced
Jonabel's chest before hitting her in the leg.5 She filed a separate criminal case against appellant for
her injury.

Defense's Version

Appellant testified that he was in Samat, Samar on the date of the alleged shooting incident. He only
knew Gerry because his sister's paupahan was next to Gerry's house. He did not know of any
reason why Gerry would implicate him in the purported shooting incident involving his daughter.6

The Trial Court's Ruling

By Decision dated July 19, 2016, the Regional Trial Court-Branch 207, Muntinlupa City found
appellant guilty of the complex crime of attempted murder with homicide, viz.:

WHEREFORE, the Court finds accused Nestor Bendecio y Viejo guilty beyond reasonable doubt of
the complex crime of attempted murder with homicide and is sentenced to an indeterminate penalty
of twelve years of prison mayor in its maximum as the minimum period to twenty years of reclusion
temporal in its maximum as the maximum period, and is ordered to pay the heirs of Jonabelle
Marasigan the amount of P75,000.00 as and for civil indemnity, P75,000.00 as and for moral
damages, P30,000.00 as and for temperate damages, and P75,000.00 as and for exemplary
damages, all with 6% interest per annum from the finality of this decision.7

The trial court gave full credence to the positive testimonies of Gerry and Princess who testified in a
straightforward, candid, and convincing manner, leaving no room for doubt that appellant was the
perpetrator of the crime. Thus, the trial court rejected appellant's self-serving, nay, uncorroborated
defenses of denial and alibi.8

Appellant was guilty of a complex crime because his single act of firing a gun at Gerry, though
ending up killing Jonabel, emanated from a single criminal intent.9 The trial court appreciated
treachery as a qualifying circumstance in the attempted killing of Gerry's, but not as to the killing of
Jonabel.

The Court of Appeals' Proceedings

In his appeal, appellant faulted the trial court for convicting him of the complex crime of attempted
murder with homicide based on the supposedly doubtful testimonies of Gerry and Princess. The trial
court should not have given full weight and credence to Gerry's positive identification of him since
Gerry admitted in open court that he joined a drinking session prior to the shooting incident. Thus,
Gerry's inebriation diminished his ability to clearly identify the man armed with a gun standing by his
doorstep that night. As regards Princess, her blood relationship with Gerry cast serious doubt on her
credibility.10

On the other hand, the Office of the Solicitor General (OSG) defended the verdict of conviction. The
OSG maintained that the trial court's conclusion on the credibility of the witnesses deserved great
respect. The defense lacked evidence to support the allegation that Gerry's level of intoxication
impaired his capacity to identify his assailant; intoxication, by itself, does not necessarily prevent a
witness from making a positive identification of the perpetrator of the crime. Too, it was immaterial
that Princess was Gerry's relative. More so because her testimony was not inherently improbable
nor was it shown that she was improperly impelled to falsely incriminate appellant.11

The Court of Appeals' Ruling

Under its assailed Decision dated August 17, 2017, the Court of Appeals affirmed with
modification, viz.:

WHEREFORE, premises considered, the appeal is DENIED. The Decision dated 19 July 2016 of the
Regional Trial Court of Muntinlupa City, Branch 207 in Crim. Case No. 12-305
is AFFIRMED with MODIFICATION in that accused-appellant Nestor Bendecio y Viejo is hereby
found guilty beyond reasonable doubt of the complex crime of attempted murder with murder and
sentenced to suffer the penalty of reclusion perpetua. Accused-appellant is further ordered to pay
the heirs of Jonabel Marasigan P75,000.00 each as civil indemnity, moral damages and exemplary
damages, and P50,000.00 as temperate damages, with interest at the rate of six percent (6%) per
annum from the time of finality of this decision until fully paid to be imposed on said civil indemnity
and all awarded damages.

SO ORDERED.12

The Court of Appeals upheld the trial court's factual findings on the credibility of the prosecution
witnesses since appellant offered no evidence, other than his bare allegations, to show that Gerry's
level of intoxication impaired his ability to identify appellant or that Princess had ulterior motive to
falsely testify against him.13

It affirmed the trial court's factual finding that appellant's intended victim was Gerry though the bullet
he fired hit Princess and killed Jonabel instead.14 Since appellant failed to perform all the acts of
execution which would have resulted in Gerry's death, appellant was liable for attempted murder,
qualified as it was by treachery.15

Appellant's poor aim amounted to aberratio ictus or mistake in the blow — a circumstance that
neither exempted him from nor mitigated his criminal liability. On the contrary, it rendered appellant
liable for Jonabel's death under Article 4 of the Revised Penal Code (RPC). For although it may not
have been appellant's intention to shoot Jonabel, it is clear that Jonabel's death was the natural and
direct consequence of appellant's felonious assault against Gerry.16

The Court of Appeals further ruled that the killing of Jonabel amounted to murder, not homicide. For
Jonabel was a hapless victim who had no opportunity to defend herself or retaliate.17

In accordance with People v. Jugueta,18 the Court of Appeals increased the award of temperate
damages to P50,000.19
The Present Petition

Appellant now seeks affirmative relief from the Court and prays anew for his acquittal.

In compliance with Resolution dated January 19, 2018 of the Court, the OSG20 and
appellant21 manifested that in lieu of supplemental briefs, they were adopting their respective briefs
submitted before the Court of Appeals.

Issue

Did the Court of Appeals err in convicting appellant of the complex crime of attempted murder with
murder?

Ruling

Appellant was charged with the complex crime of murder and attempted murder.

Article 248 of the RPC defines and penalizes murder, thus:

Article 248. Murder. - Any person who, not falling within the provisions of Article 246, shall kill
another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed
with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity;

xxxx

It requires the following elements: (1) a person was killed; (2) the accused killed him; (3) the killing
was attended by any of the qualifying circumstances mentioned in Article 248 of the RPC; and (4)
the killing is not parricide or infanticide.22

On the other hand, Article 6 of the RPC23 states that there is an attempt to commit a felony when
the offender directly commences its commission by overt acts but was unable to perform all the acts
of execution which should have produced the felony by reason of some cause or accident other than
his or her own spontaneous desistance. In Palaganas v. People,24 the Court held that attempted
murder or attempted homicide is committed when the accused intended to kill the victim, as
manifested by the use of a deadly weapon in the assault, and the wound/s sustained by the victim
was/were not fatal.

Here, records bear the detailed narrations of Gerry and Princess about the shooting incident.
Appellant fired at Gerry but instead of hitting the latter, the bullet hit Jonabel in the chest and
thereafter, Princess in the leg. Jonabel died as a result.

Although appellant, with intent to kill, fired his gun at Gerry, appellant was not able to consummate
the killing for reasons other than his own desistance - he simply missed and ended up wounding
Princess and killing Jonabel.

The Court reckons with the third element of the crime of murder, i.e., the killing was attended by any
of the qualifying circumstances mentioned in Article 248 of the RPC.
The Information alleged that treachery attended the shooting of Gerry. There is treachery when two
(2) elements concur: (1) the employment of means, methods, or manner of execution which would
ensure the offender's safety from any defense or retaliatory act on the part of the offended party; and
(2) such means, method, or manner of execution was deliberately or consciously chosen by the
offender.25 The essence of treachery consists of the sudden and unexpected attack on an
unguarded and unsuspecting victim without any ounce of provocation on his or her part.26

The case records undeniably prove that Gerry was the intended victim of the shooting. When Gerry
went home and tried to close the front door, he noticed appellant standing right outside the doorway.
Suddenly, appellant drew a gun, aimed at him, and fired. Appellant, however, missed hitting Gerry
and ended up injuring Princess and killing Jonabel.

The qualifying circumstance of treachery attended the attempted killing of Gerry. In People v.
Amora,27 the Court held that the qualifying circumstance of treachery does not require that the
perpetrator attack his or her victim from behind. Even a frontal attack could be treacherous when
unexpected and on an unarmed victim who would be in no position to repel the attack or avoid it.
This is the case for Gerry. As shown, appellant commenced the commission of murder by suddenly
firing his gun towards Gerry who was then unarmed and was not in a position to defend himself.
Gerry, however, did not die as a result because appellant simply missed.

Evidently, Gerry never saw that what started as a mere accidental bumping that night in the house of
a friend would carry on and end in a tragedy inside his own home. He almost got killed while his
young innocent child lost her life. Things happened so sudden and fast, he never got the chance to
defend himself or his child or even to just run away.

As for Jonabel's death, what happened to this seven (7)-year-old was a clear case of aberratio ictus
or mistake in the blow. Under the doctrine of aberratio ictus, as embodied in Article 4 of the
RPC,28 criminal liability is imposed for the acts committed in violation of law and for all the natural
and logical consequences resulting therefrom. Thus, while it may not have been appellant's intention
to shoot Jonabel, this fact alone will not exculpate him of his criminal liability. Jonabel's death was
unquestionably the natural and direct consequence of appellant's felonious deadly assault against
Gerry.29

Notably, the qualifying circumstance of treachery attended Jonabel's killing. As pointed out by
Justice Mario V. Lopez during the deliberation, although appellant did not intend to kill Jonabel,
treachery may still be appreciated in aberratio ictus, pursuant to the Court's ruling in People v.
Flora30 There, the accused fired his gun at his target, but missed, and hit two (2) other persons. The
Court appreciated treachery as a qualifying circumstance and convicted the accused for murder and
attempted murder because even if the death and injury of the two (2) other persons resulted from
accused's poor aim, accused's act of suddenly firing upon his victims rendered the latter helpless to
defend themselves. This is applicable here. Just because Jonabel was not the intended victim does
not make appellant's sudden attack any less treacherous.

In another vein, appellant faults the Court of Appeals for affirming the trial court's factual findings on
the credibility of the testimonies of Gerry and Princess. Appellant essentially argues that Gerry's
Ꮮαwρhi ৷

testimony should not have been given weight and credence because he was under the influence of
alcohol when the purported shooting incident took place and thus, he could not have positively
identified that appellant as the perpetrator of the crime. Appellant also asserts that Princess, being
Gerry's sister, is a biased witness whose testimony is unworthy of belief.

We are not persuaded.

When the credibility of witnesses is put in issue, the Court will generally not disturb the trial court's
factual findings thereon, especially when affirmed by the Court of Appeals, as in this case. Indeed,
the trial court was in a better position to decide the question of credibility as it heard the witnesses
themselves and observed their deportment and the manner by which they testified during the trial.31

Notably, appellant offered no evidence, other than his bare allegations, to show that Gerry's level of
intoxication impaired his ability to identify appellant or that Princess had ulterior motive to testify
against him.

Against the testimonies of Gerry and Princess, appellant's denial and alibi must crumble. We have
held time and again that denial and alibi are inherently weak defenses which cannot prevail over the
positive and credible testimonies of the prosecution witnesses that it was appellant who committed
the crime charged. Hence, as between a categorical testimony which has a ring of truth on one
hand, and a mere denial on the other, the former is generally held to prevail.32

Article 48 of the RJPC states that there is a complex crime when a single act constitutes two (2) or
more grave or less grave felonies. Here, appellant's single act of firing his gun constituted the crime
of attempted murder, with respect to Gerry, and the crime of murder, as regards Jonabel. Article 48
of the RPC likewise provides that the penalty for the most serious crime shall be imposed, the same
to be applied in its maximum period. Here, the most serious crime is murder. Hence, the imposable
penalty is that of murder in its maximum period. Under Article 248 of the Revised Penal Code,
murder is punishable by reclusion perpetua to death. Due to Republic Act No. 934633 (RA 9346),
however, the penalty to be imposed is reclusion perpetua. More, in accordance with A.M. No. 15-08-
02,34 the qualification of "without eligibility for parole" shall be used in order to emphasize that the
accused should have been sentenced to suffer the death penalty had it not been for RA 9346.

As for the monetary award, People v. Jugueta35 teaches that civil indemnity, moral damages, and
exemplary damages must be awarded for each component of the complex crime. Prevailing
jurisprudence sets the award of P100,000.00 as civil indemnity, P100,000.00 as moral damages,
and P100,000.00 as exemplary damages in murder cases where the imposable penalty is death but
due to the prohibition to impose the same, the actual penalty imposed is reclusion perpetua. An
award of P50,000.00 as temperate damages is likewise proper. With respect to the crime of
attempted murder, an award of P25,000.00 as civil indemnity, P25,000.00 as moral damages, and
P25,000.00 as exemplary damages is fitting.

WHEREFORE, the instant appeal is DISMISSED. The Decision dated August 17, 2017 of the Court
of Appeals in CA-G.R. CRNo. 39046 is hereby AFFIRMED.

Appellant Nestor Bendecio y Viejo alias "Tan" is guilty of the COMPLEX CRIME OF MURDER WITH
ATTEMPTED MURDER and sentenced to reclusion perpetua without eligibility for parole. He is
further ordered to pay Gerry Marasigan P25,000.00 as civil indemnity, P25,000.00 as moral
damages, and P25,000.00 as exemplary damages and the heirs of Jonabel Marasigan F100,000.00
as civil indemnity, P100,000.00 as moral damages, P100,000.00 as exemplary damages, and
J>50,000.000 as temperate damages. These amounts shall earn six percent (6%) interest per
annum from finality of this decision until fully paid.

SO ORDERED.