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SECOND DIVISION

G.R. No. 124212 September 17, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. WILFREDO FELOTEO, Accused-Appellant.

PUNO, J.:

Accused WILFREDO FELOTEO was charged with and convicted of the crimes of Murder, as defined and penalized under Article 248 of the Revised Penal Code, and Illegal possession of Firearm, a violation of Section 1 of Presidential Decree No. 1866.

The Informations against accused read:

In Criminal Case No. 11109

That on or about the 6th day of May, 1993, in the evening, at Sitio Nagbaril, Barangay Bintuan, Municipality of Coron, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with evident premeditation and treachery, while armed with a firearm and with intent to kill, did then and there willfully, unlawfully and feloniously shoot with his firearm, to wit: an armalite rifle, one SONNY SOTTO, hitting him on the vital part of his body and inflicting upon him a gunshot wound on the left side of his chest, thru and thru, which injury was the direct and immediate cause of his instantaneous death. (emphasis ours)

CONTRARY TO LAW and committed with aggravating circumstance of treachery.

In Criminal Case No. 11644

That on or about the 6th day of May, 1993, and prior thereto, at Sitio Nagbaril, Barangay Bintuan, Municipality of Coron, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused did then and there willfully, unlawfully and feloniously have in his possession, custody and control, one armalite rifle with Serial No. 9035914 and ammunitions, without any license or permit to possess the same and that this firearm was used in shooting to death one SONNY SOTTO in a case of Murder filed with the RTC of Palawan and Puerto Princesa City, docketed as Criminal Case No. 11109 and that this crime has no relation or (is not) in furtherance of the crime of rebellion or subversion. (emphasis ours)

CONTRARY TO LAW.

When arraigned, accused pled not guilty. Trial ensued.

The records show that in the evening of May 6, 1993, the victim, SONNY SOTTO, and his friends, ARNEL ABELEDA and JOHNNY ABREA, were walking along the highway in Barangay Bintuan, Coron, Province of Palawan. They had a few drinks earlier that day and were on their way home to Sitio Nagbaril. Abrea walked ahead of the group, about thirteen (13) meters away from Sotto, followed by Abeleda. They were in a lively mood as Abeleda playfully walked backwards, facing Sotto. ¹

The accused, WILFREDO FELOTEO, appeared at the opposite side of the road and walked past Abrea and Abeleda. He was armed with an armalite rifle. Abeleda and Abrea recognized the accused, their barriomate, as the moon was shining brightly. They did not pay much attention to the accused as Abeleda was playing "habulan" with Sotto. Without uttering a word, the accused aimed the armalite at Sotto and pressed its trigger. Sotto was hit above the left chest and fell on the ground, face down. Abeleda and Abrea scampered away to find help, while the accused fled from the crime scene. ² Ten (10) minutes later, Abeleda and Abrea, accompanied by Barangay Tanod Tito Abrina and a certain Inyong Adion, returned to the locus criminis. They found Sotto dead.

Sotto was brought to the hospital for autopsy. The Autopsy Report showed that he sustained a gunshot wound, with the bullet entering the left side of his collarbone and exiting at the spinal cord. The bullet came from an M-16 armalite rifle. He also had abrasions on the knees and face. Dr. Hew G. Curameng of the Palawan Provincial Hospital opined that Sotto fell on his knees before he slumped to the ground, face down. There were no powder burns on his body, indicating that the victim was shot from a distance. The cause of death was massive blood loss secondary to gunshot wound. ³

The firearm used in the shooting incident belongs to SPO2 Roman Adion. On May 6, 1993, SPO2 Adion went to the house of Teofisto Alaquin in Sitio Nagbaril. He brought with him his official service firearm, an M-16 armalite rifle, ⁴ as he had been ordered to go to Jandanao the next day to investigate a land dispute. He slept early. At around 6:30 p.m., Alaquin woke him up and informed him that the accused stole his armalite. SPO2 Adion, together with Nazario Adion and Frank Adion, immediately looked for the accused. They heard a gunshot coming from a distance of about four hundred (400) meters and rushed to the place where it emanated. They, saw Sotto lying prostrate on the road, shot on the chest. SPO2 Adion suspected that his armalite was used in the shooting incident and he continued his hunt for the accused. The next day, May 7, 1993, at 5:00 a.m., he nabbed the accused in Sitio Cabugao, five (5) kilometers away from the crime scene. The accused surrendered the armalite to him. Upon inspection, SPO2 Adion found nineteen (19) bullets left in the armalite. There were twenty (20) bullets inside the armalite chamber and magazine before it was stolen. ⁵

SPO4 Jose Ansay, Chief of the Firearm and Explosive Unit of the Philippine National Police (PNP) in Tiniguiban, Puerto Princesa City, Palawan, affirmed that the accused was not duly licensed to carry a firearm. ⁶

The accused denied that he stole SPO2 Adion's armalite and alleged that the shooting of Sotto was an accident. He averred that on May 6, 1993, he was in his sister's house in Barangay Bintuan, Coron, when SPO2 Adion passed by and invited him over to the place of Teofisto Alaquin in Nagbaril. They boarded SPO2 Adion's tricycle and arrived at Nagbaril at about 3:00 p.m. Frank Adion dropped by the house of Alaquin and borrowed the tricycle of SPO2 Adion. Frank Adion later returned on foot and told SPO2 Adion that the tricycle's engine broke down so he left it along the road. SPO2 Adion checked on his tricycle and left behind his armalite rifle. Before leaving, he instructed the accused to wait for him at Alaquin's house. ⁷

After thirty minutes, the accused decided to follow SPO2 Adion. He took the armalite and walked the road leading to Bintuan. At about 7:00 p.m., he met Sonny Sotto's group. They zigzagged as they walked. In jest, the accused said to Sotto, "Boots, don't get near me, I'll Shoot you." He pointed the armalite at Sotto and pressed its trigger, allegedly unaware that it was loaded. It fired and hit Sotto. The accused fled but was apprehended by SPO2 Adion the following day. He told SPO2 Adion that he accidentally shot Sotto. ⁸

After trial, the accused was found guilty as charged. ⁹ He was sentenced to suffer the penalties of reclusion perpetua, for murder, and imprisonment of twenty (20) years, for illegal possession of firearm. He was further ordered to pay the heirs of Sotto the amount of fifty thousand pesos (P50,000.00), as civil indemnity.

In this appeal, appellant contends:

THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY AS ATTENDING THE COMMISSION OF THE CRIME ALLEGED AND IN HOLDING ACCUSED-APPELLANT GUILTY OF MURDER IN THE KILLING OF SONNY SOTTO.

We affirm the judgment of conviction with modification.

We reject the argument of the appellant that he should not have been convicted for murder as treachery was not duly established by the prosecution. Allegedly, Sotto knew of the impending attack for it was frontal. Moreover, Sotto was warned, albeit jokingly, that he was going to be shot.

Under par. 16, Article 14 of the Revised Penal Code, the qualifying circumstance of treachery is present when the offender employs means, methods, or forms in the execution of the crime which tend directly and especially to insure its execution without risk to himself arising from any defensive or retaliatory act which the victim might make. ¹⁰ The settled rule is that treachery can exist even if the attack is frontal if it is sudden and unexpected, giving the victim no opportunity to repel it or defend himself. What is decisive is that the execution of the attack, without the slightest provocation from a victim who is unarmed, made it impossible for the victim to defend himself or to retaliate. ¹¹

In the case at bar, treachery is present for there was a sudden attack against the unarmed Sotto. When Sotto and his friends encountered appellant on the road, they were in a "jovial mood" as they just came from a drinking spree. Although they saw appellant carrying an armalite, they did not suspect anything untoward to happen. However, without any provocation, appellant shot Sotto. The fact that the attack was frontal cannot negate treachery. The shooting was unexpected. There is no showing that the alleged warning given by appellant to Sotto afforded the latter sufficient time to defend, himself. Indeed, Sotto could not defend himself as he was unarmed and a bit drunk - as observed by the appellant himself, the victim was walking in a zigzag manner. There was no way for Sotto to avoid the armalite bullet.

We now come to the penalty imposed on appellant in view of the recent amendments to P.D. No. 1866 by R.A. No. 8294.

Appellant was convicted under Article 248 of the Revised Penal Code, for murder, and under Section 1 of P.D. No. 1866, for illegal possession of firearm, the governing laws at the time the crimes were committed. Section 1 of P.D. 1866 provides:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of firearm, ammunition of machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. (emphasis ours)

Republic Act No. 8294 amended P.D. No. 1866 by reducing the penalties for simple and aggravated forms of illegal possession of firearms. ¹² The law now provides:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000,00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm such as rimfire handgun, .380 or .32 and other firearm of similar firepower, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .45 and also lesser caliber firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however That no other crime was committed by the person arrested.

If homicide or murder is committed with the use of unlicensed firearm, such use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. (emphasis ours)

xxx xxx xxx

Sec. 5. Coverage of the Term Unlicensed Firearm. - The term unlicensed firearm shall include:

1) firearms with expired license, or

2) unauthorized use of licensed firearm in the commission of the crime.

Clearly, the penalty for illegal possession of high powered firearm is prision mayor in its minimum period and a fine of P30,000.00. In case homicide or murder is committed with the use of unlicensed firearm, such use of unlicensed firearm shall be considered merely as an aggravating circumstance.

The enactment of R.A. No. 8294 can be given retroactive effect as it favors the appellant. ¹³ So we held in People vs. Simon, ¹⁴ viz:

Since obviously, the favorable provisions of Republic Act 7659 could neither have been involved or invoked in the present case, a corollary question would be whether this court, at the present stage, can sua sponte apply the provisions of Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:

. . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty.

If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice procedure and pragmatic consideration would warrant and necessitate the matter being brought to the judicial authorities for relief under a writ of habeas corpus. (footnote omitted)

Thus, in the recent case of People vs. Molina, et al., ¹⁵ the Court (En Banc) gave retroactive application to R.A. No. 8294 considering that, under the new law, the offenses of murder and illegal use or possession of firearm are integrated into a single offense. We held:

. . . The intent of Congress to treat as a single offense the illegal possession of firearm and the commission of murder or homicide with the use of such unlicensed firearm is clear from the following deliberations of the Senate during the process of amending Senate Bill No. 1148:

Senator Drilon, On line 18, we propose to retain the original provision of law which says, "If homicide or murder is committed with the use of the unlicensed firearm." And in order that we can shorten the paragraph, we would suggest and move that the use of the unlicensed firearm be considered as an aggravating circumstance rather than imposing another period which may not be in consonance with the Revised Penal Code.

So that (if) I may read the paragraph in order that it can be understood, may I propose an amendment to lines 18 to 22 to read as follows: "If homicide or murder is committed with the use of the unlicensed firearm, SUCH USE OF AN UNLICENSED FIREARM SHALL BE CONSIDERED AS AN AGGRAVATING CIRCUMSTANCE."

xxx xxx xxx

Senator Santiago. Mr. President.

The President. With the permission of the two gentlemen Senator Santiago is recognized.

Senator Santiago. Will the principal author allow me as coauthor to take the [f]loor to explain, for the information of our colleagues, the stand taken by the Supreme Court on the question of whether aggravated illegal possession is a complex or a compound offense. May I have the [f]loor?

Senator Revilla. Yes, Mr. President.

Senator Santiago. Thank you.

In 1995, the Supreme Court held that when the crime of killing another person is committed with the use of an unlicensed firearm, the ruling in the case of People vs. Barros was that the crime should only be illegal possession of firearm in its aggravated form. But in the later case, in May 1996, in the case of People vs. Evangelista, the court apparently took another position and ruled that when a person is killed with the use of an unlicensed firearm, it is possible to file two separate information[s] - one for murder and one for illegal possession of firearms.

In other words, in two successive years, the Supreme Court issued two different ways of treating the problem. The first is to treat it as one crime alone in the aggravated form, and the second is to treat it as two separate crimes.

So at this point, the Senate has a choice on whether we shall follow the 1995 or the 1996 ruling. The proposal of the gentleman, as a proposed amendment, is to use the 1995 ruling and to consider the offense as only one offense but in an aggravated form. That could be acceptable also to this coauthor.

The Presiding Officer [Sen. Flavier.] So, do I take it that the amendment is accepted?

Senator Revilla. Yes, it is accepted, Mr. President.

The Presiding Officer [Sen. Flavier.] Thank you. Is there any objection to the amendment? [Silence] There being none, the amendment is approved.

Although the explanation of the legal implication of the Drilon amendment may not have been very precise, such modification as approved and carried in the final version enacted as RA 8294, is unequivocal in language and meaning. The use of an unlicensed firearm in a killing is now merely an aggravating circumstance in the crime of murder or homicide. This is clear from the very wordings of the third paragraph of Section 1 of RA 8294, which reads:

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.

Furthermore, the preceding paragraphs, also in Section 1, state that the penalties for illegal possession of firearms shall be imposed "provided that no other crime is committed." In other words, where murder or homicide was committed, the separate penalty for illegal possession shall no longer be meted out, since it becomes merely a special aggravating circumstance.

This statutory amendment may have been an offshoot of our remarks in People vs. Tac-an and People vs. Quijada.

Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker because the term penalty in the subject provision is obviously meant to be the penalty for illegal possession of firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an:

There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under an information charging homicide or murder, the fact that the death weapon was an unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The essential point is that the unlicensed character or condition of the instrument used in destroying human life or committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code.

A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance.

In line with our decision in People vs. Molina, the appellant is liable only for murder under the Revised Penal Code. Further, in view of amendments introduced by R.A. No. 8294 to P.D. No. 1866, the use of the unlicensed firearm in killing the victim, Sonny Sotto, is no longer considered as a separate offense, instead, it is considered as an aggravating circumstance. ¹⁶ However, it will not affect the penalty of reclusion perpetua imposed against the
appellant. ¹⁷

IN VIEW WHEREOF, we AFFIRM the trial court's judgment in Criminal Case No. 11109; sentencing the appellant, WILFREDO FELOTEO, to reclusion perpetua and ordering him to indemnify the legal heirs of the victim, Sonny Sotto, in the amount of P50,000.00. Appellant 's conviction in Criminal Case No. 11644 is SET ASIDE.

SO ORDERED.

Regalado, Melo, Mendoza and Martinez, JJ., concur.

1 TSN, September 12, 1994, pp. 11-12, 18, 27-28, 33.

2 TSN, September 12, 1994, pp. 18, 26, 35.

3 Exhibit "F"; TSN, March 28, 1995, pp. 15-16, 20-22, 24-27.

4 Bearing serial number 9035914.

5 TSN, September 13, 1994, pp. 7-8, 11-12, 15-21, 24, 27, 30-37, 59.

6 Exhibit "C"; TSN, February 27, 1996, p. 7.

7 TSN, November 13, 1995, pp. 5-6, 9-12.

8 Ibid., pp. 13-16.

9 Decision, dated December 6, 1995; Penned by Presiding Judge Eustaquio Z. Gacott, Jr.

10 People vs. Santos, G.R. No. 94545, April 4, 1997, 270 SCRA 650.

11 People vs. Apongan, G.R. No. 112369, April 4, 1997, 270 SCRA 713; People vs. Javier, G.R. No. 84449, March 4, 1997, 269 SCRA 181.

12 It was approved on June 6, 1997 and published in the newspapers on June 21, 1997, thus taking effect (15) days thereafter.

13 See Article 22 of the Revised Penal Code.

14 G.R. No. 93028, July 29, 1994, 234 SCRA 555, 570-571.

15 See G.R. Nos. 115835-36, July 22, 1998.

16 On June 5, 1988, we promulgated a decision in this case, finding appellant Feloteo guilty as charged. However, no entry of judgment was made as the Court resolved on June 15, 1998, to recall the June 5, 1998 Decision considering that "there are other cases involving essentially the same issue, and it is needful to preclude for obvious reasons the rendition of conflicting resolutions upon the same question."

17 Cf. R.A. 7659 (Death Penalty Law). The penalty of death cannot be imposed against appellant despite the existence of the special aggravating circumstance of illegal use of unlicensed firearm because the killing was committed on May 1993, prior to the effectivity of R.A. 7659 on December 13, 1993.