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THIRD DIVISION

G.R. No. 133382. March 9, 2000

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. EFREN MENDOZA y SALVADOR, Accused-Appellant.

D E C I S I O N

PANGANIBAN, J.:

True, a father and husband has the duty and the right to defend himself, his family and his home. However, in order to successfully invoke self-defense and defense of relative, he must prove, by clear and convincing evidence, the concurrence of three elements, the most important of which is unlawful aggression on the part of the victim. Absent unlawful aggression, these defenses collapse and the accused must be convicted.

The Case

Efren Mendoza y Salvador was charged with murder for the July 14, 1993 killing of Anchito A. Nano. Before the Regional Trial Court of Daet, Camarines Norte, an Information¹ was filed against him on September 9, 1993, alleging as follows:

"That on or about 7:30 o clock [o]n the evening of July 14, 1993, at Brgy. Manlucugan, [M]unicipality of Vinzons, [P]rovince of Camarines Norte, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously with deliberate intent to kill, with treachery and evident premeditation, assault, attack and hack with a bolo one ANCHITO A. NANO, thereby inflicting upon the latter multiple hacking wounds, which were the proximate cause of his instantaneous death, to the damage and prejudice of the heirs of the victim.

"CONTRARY TO LAW."²cräläwvirtualibräry

During his arraignment on October 22, 1993, appellant, with the assistance of Atty. Leo Intia, entered a plea of not guilty.³ On November 6, 1997, after trial in due course, the court a quo rendered its assailed nine-page Decision,⁴ the dispositive portion of which reads:

"WHEREFORE, premises considered, this court hereby finds the accused, Efren Mendoza GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized under Article 248 of the Revised Penal Code. The mitigating circumstance of voluntary surrender will not affect the penalty imposed since it is offset by the aggravating circumstance of treachery. Wherefore, he is hereby ordered to suffer the penalty of RECLUSION PERPETUA, and to pay the heirs of the deceased the following:

a) P 50,000.00 as death indemnity; and

b) P 30,000.00 as moral damages.

"The bond posted for the provisional liberty of said accused is hereby CANCELLED.

"SO ORDERED."⁵cräläwvirtualibräry

Hence, this appeal.⁶

The Facts

The Version of the Prosecution

In the Peoples Brief,⁷ the Office of the Solicitor General presented the following statement of facts:

"At around 7:00 p.m. of July 14, 1993, in Barangay Manlucugan, Vinzons, Camarines Norte, Anchito Nano and Marianito Rafael passed by appellants house and asked for a drink from appellants wife, Emily Mendoza. Anchito began talking with Emily and they were about four arms-length from Marianito when appellant suddenly appeared. Appellant hacked Anchito on the nape, which prompted Marianito to flee out of fear for his life. (TSN, March 9, 1993, pp.10-14).

"Brgy. Kagawad Pedro Saman, together with Ernesto Cribe and Trinidad delos Santos, arrived later at the scene of the crime. Kagawad Saman discovered Anchito in a kneeling position already dead. He also found (3) three hack wounds on the nape and two (2) hack wounds at the back of Anchitos body (TSN, March 10, 1997, pp. 7 and 18).

"At around 9:00 p.m. of that day, Trinidad delos Santos reported the hacking incident to the sub-station of Aguit-it, Vinzons. SPO2 Silverio Rafael proceeded to the crime scene and saw Anchitos body still in a kneeling position with hack wounds at the back of the neck and body (TSN, May 31, 1994, p. 5).

"SPO4 Rafael asked the people present who was the perpetrator of the crime. The Barangay officials led by Kgwd. Saman and Kgwd. Cribe informed Rafael that the perpetrator was appellant Efren Mendoza. SPO4 Rafael later observed that the appellants house was in total disarray and he surmised that things might have been taken in a hurry. He also noted that there was no weapon anywhere near the victims body (Ibid., pp. 12-14 and 17).

"Later that night, appellant surrendered to Senior Police Officer Leonardo Almadrones who promptly turned him over to Chief Investigator Joel Guinto for the requisite investigation. During investigation, appellant claimed that Anchito ransacked his house and hacked his seven (7) year old son Ernie Mendoza (TSN, July 1, 1994, p. 5).

"Two days later, appellants wife and son went to the Vinzons police station to blotter Ernie Mendozas wound. Investigator Guinto interviewed Ernie Mendoza and concluded that Ernies wound was made by somebody other than the victim since the said wound was not deep enough. Also, when he questioned the child about the wound, the latter answered that when he woke up, he already had a wound. Investigator Guinto later filed the present charge against appellant after the victims common-law wife brought several witnesses who each executed their corresponding sworn affidavits." (Ibid., pp. 7 & 11)."⁸

The Version of the Defense

The defense presented six witnesses: Appellant Efren Mendoza, his wife Emily and his son Ernie; Bayani Aguilar; Dr. Gaudencio Albano and Carmen Herico. In his Brief,⁹ appellant summarized the defense witnesses testimonies as follows:

"EMILY MENDOZA, wife of appellant, testified that at around 7:00 o clock in the evening, the victim Anchito Nano and his companion Marianito Rafael arrived at their house and upon arrival, Anchito Nano destroyed the two (2) windows of their house. She saw afterwards that her son, Ernie Mendoza, was hacked by Anchito Nano while the former was peeping thru the destroyed window. She shouted for help and appellant, her husband, responded to her call and saw Anchito Nano who was about to attack her husband, but was hacked first by the latter. Marianito Rafael who was just watching subsequently fled from the place of the incident. She brought her son first to the faith healer for immediate treatment and the following morning to the Provincial Hospital for medical treatment. She learned later that her husband went to Vinzons Municipal Hall and surrendered voluntarily to the police authority on the same day of July 14, 1993. (TSN, December 8, 1994, pp. 3-11).

"EFREN MENDOZA, accused-appellant, testified that on July 14, 1993, at around 7:30 in [the] evening, he was at the comfort room 20 about meters away from their house when he heard his wife shouting for help. He ran immediately towards the direction of their house and saw Anchito Nano destroying the lock of their window[;] hence he looked for a piece of wood but found a bolo instead. He later heard his son shout, "Ama, tinaga ako." He approached Anchito Nano to prevent him from entering their house but the latter tried to hack him. He was able to deliver a hacking blow ahead of the victim on the right side of the neck. Thereafter, he immediately went to the Municipal Hall of Vinzons and surrendered voluntarily to the police authority (TSN, March 27, 1995, pp. 3-8).

"ERNIE MENDOZA, appellants son, testified that on July 14, 1993, at around 7:30 in the evening, he noticed that somebody was hacking their house, hence, he peeped through the window and saw Anchito Nano who hacked him on the head, thereby resulting [in] los[s] of consciousness while his mother [kept] on shouting for help. He was brought first to a quack doctor for immediate treatment and the following morning, to the provincial hospital where he was treated by Dr. Albano for the head injury he sustained.

"BAYANI AGUILAR, police chief of Vinzons PNP testified that he issued a certification on August 3, 1993 about the voluntary surrender of appellant Efren Mendoza and another certification regarding one in the report made by Emily Mendoza relative to the hacking of his son by Anchito Nano which happened on July 14, 1993 at about 7:30 in the evening at their house (TSN, November 7, 1995, pp. 2-4).

"DR. GAUDENCIO ALBANO, the attending doctor who treated appellants son testified that he treated Ernie Mendoza who suffered a wound laceration four (4) cm. long at the middle of the head which could have been caused by a blunt object. (TSN, July 31, 1996, pp. 4-6).

"CARMEN HERICO testified that on July 14, 1993, at around 7:30 in the evening, she heard her daughter, Emily Mendoza shouting for help, hence she ran towards her daughters house and they met halfway along the road. They proceeded back to her daughters house and she saw the fallen window. She and her daughter, subsequently proceeded to the house of Pedro Saman, a barangay kagawad and informed the latter about the incident. (TSN, October 22, 1996, pp. 3, 5-6)."¹⁰

Trial Courts Ruling

The court a quo rejected appellant's plea of self-defense, ratiocinating as follows:

"To bolster his claim of self-defense, accused Efren Mendoza declared: when he heard the shouts for help of his wife, immediately he ran towards their house and saw the victim destroying their house. There, he heard his son [shout], "Ama, tinaga ako." He immediately approached the victim in order to prevent him from entering the house. He delivered the first blow by hacking the victim, hitting the victim at the right side of the neck, alleging that the victim, when they were facing each other, hacked the accused first.

"Indeed, a mans house is his castle. He has the right to protect it. He may repel force by force in defense of person, habitation or property against anyone who manifestly intends or endeavors by violence or surprise to commit a felony. But these circumstances surrounding the incident negates the allegations of the accuseds self-defense. First, there is an eyewitness on the part of the prosecution, that the accused suddenly attacked and hacked the victim outside the house (tsn., March 9, 1994, pp. 12-13). Secondly, the physical evidence of the number, location and severity of the [hack] and incised wounds found on the body of the victim affirmed by the medical findings contained in the autopsy report that all the hack wounds [came] from the back of the victims body (tsn., Feb. 4, 1994, p. 7), and the pictures presented in court (Exhibits "C" to "C-4") all indicate that the victim was hacked from behind. Clearly, accuseds act was no longer one of self-preservation, but a determined effort to kill his victim."¹¹cräläwvirtualibräry

Holding that appellants claim was debunked by the prosecution witnesses testimonies which were more credible, the trial court explained:

"Kagawad Pedro Saman was among the first persons who saw the vicinity of the incident. He noticed that the victim was not carrying any weapon or knife or a piece of wood and the house was in good condition (tsn, March 10, 1994, p. 14). It was corroborated by SPO4 Silverio Rafael that there was indeed no weapon within the vicinity where the corpse of the victim was found (tsn, May 31, 1994, p. 17) The allegations of the accused that the victim was the aggressor who hacked him first is contrary to human nature. There was no altercation, warning or even a challenge that [would] enable the victim to be aggressor. The aggression must be real, or at least, imminent and not merely imaginary. The aggressors intent must be ostensibly revealed by his hostile attitude and other external acts constituting a real, material, unlawful aggression. A threat, even if made with a weapon or the belief that a person was about to be attacked, is not sufficient. It is necessary that the intent be ostensibly revealed by an act of aggression or by some external acts showing the commencement of actual, material, unlawful aggression. This court finds that [since] the accused was not in imminent danger of death or great bodily harm, an attempt to defend himself by means which appeared unreasonable by using a long bolo is unjustifiable. Hence, the self-defense foisted by the accused is not well-founded, but an alibi to exonerate him from the offense he committed."¹²

The Alleged Errors

In his Brief, appellant assails (1) the trial courts rejection of his plea of defense of relative and (2) its characterization of the crime committed. Thus, he submits:

"I

THE TRIAL COURT ERRED IN NOT UPHOLDING THE THEORY OF DEFENSE OF RELATIVE ESPOUSED BY THE ACCUSED-APPELLANT DESPITE CORROBORATIVE EVIDENCE SUPPORTING THE SAME.

II

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF MURDER DESPITE THE ABSENCE OF QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION AS ALLEGED IN THE INFORMATION."¹³

The Courts Ruling

The appeal is partly meritorious. The mitigating circumstance of voluntary surrender should be appreciated in appellants favor.

First Issue: Self-Defense and Defense of a Relative

The appellant admits to having hacked Anchito Nano, but vigorously insists that he did so to defend himself, his family and his home.

Mendoza recounts that on that fateful night, he was relieving himself in their comfort room situated about twenty meters outside their house, when he heard his wifes frantic pleas for help. He immediately rushed to their house and saw Nano destroying their windows. The former looked for something with which to arm himself and found a bolo. He recalls that at this point, he heard his son shout, "Ama, tinaga ako!" Thereafter, he approached Nano to prevent him from entering the house. The latter allegedly faced him and was about to strike him with a bolo, but the former was able to parry the blow, quickly retaliate and hit him on the neck.¹⁴cräläwvirtualibräry

Requisites of Self-Defense and Defense of Relative

Because the accused raises self-defense and defense of a relative, it is incumbent upon him to prove the presence of the following requisites: unlawful aggression on the part of the victim, lack of sufficient provocation on his part, and reasonable necessity of the means he used to repel the aggression.¹⁵ It is settled that the accused who invokes self-defense or defense of a relative must present clear and convincing evidence. Such person cannot rely on the weakness of the prosecution, for even if it is weak, it cannot be disbelieved because the former has admitted the killing.¹⁶cräläwvirtualibräry

Unlawful Aggression Not Proven

We find that the appellant was not able to prove the all-important first requisite -- unlawful aggression on the part of Anchito Nano. Mendoza contends that it was the latter who started the aggression by acting in a manner that was threatening and dangerous to the former and his family, wreaking havoc on his house and in the process, injuring his seven-year-old son. Appellant likewise avers that Nano was about to strike him when the former, acting instinctively, delivered the fatal blows to the latter.

Emily and Ernie Mendoza, appellants wife and son, corroborated this assertion. They testified that the deceased had started the fracas and caused the wound on Ernies head. To further prove this claim, the defense presented Dr. Gaudencio Albano, Ernies attending physician, who testified that the boy had suffered a laceration, four centimeters long at the middle of the head, which could have been caused by a blunt object.¹⁷cräläwvirtualibräry

Despite this corroboration, however, several circumstances belie appellants claim of self-defense and defense of a relative. First, investigators found the deceased in a kneeling position with five wounds - three on the nape, and two at the back. Thus, the nature and the location of such wounds debunked appellants claim that Nano was about to attack him.

Second, the bolo which Nano had allegedly used in his attack was not found within the vicinity of the crime scene and was not presented in court. This point was established by SPO4 Silverio Rafaels testimony¹⁸ and the photographs¹⁹ depicting the actual crime scene.

Third, granting that Ernie Mendoza was injured, the appellant and his witnesses were not able to prove adequately that such injury was caused by Nano, because there were inconsistencies and improbabilities in their testimonies. Ernie claimed that he had lost consciousness after being struck with a bolo by Nano.²⁰ However, appellant asserts that he heard his child cry, "Ama, tinaga ako!" while the former was about to subdue the assailant. Moreover, appellant admits that he did not see Nano hit his son.

Likewise, the testimonies of Carmen Herico (Emilys mother) and Pedro Saman regarding the circumstances after the hacking incident negated Emilys claim that she had rushed her wounded son to the faith healer. Herico went to her daughters house after hearing the latters cries for help, but the former did not see anything except a fallen window.²¹ Surely, she would have noticed if her grandchild was injured. Pedro Saman, the baranggay kagawad summoned by Herico, also testified that appellants children were in the house when he arrived at the crime scene,²² but he did not mention anything about an injured child.

In any event, the trial court disbelieved the testimonies of the defense witnesses. The well-settled rule is that the trial court's findings on the credibility of witnesses and their testimonies are accorded great weight and respect, in the absence of any clear showing that some facts or circumstances of weight or substance which could have affected the result of the case have been overlooked, misunderstood or misapplied.²³ Appellant failed to present any reason why this Court should reverse or modify the court a quos ruling.

In all, the totality of the evidence presented by the appellant was not sufficient to prove that it was Nano who had started the fracas, and that the former was just acting to defend himself, his family and his home.

Second Issue: Crime and Punishment

We agree with the trial court that the killing of Anchito Nano was qualified by treachery, as alleged in the Information. The essence of treachery is the sudden and unexpected attack, without the slightest provocation on the part of the person attacked.²⁴ Treachery exists when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk arising from the defense which the offended party might make.²⁵cräläwvirtualibräry

In the present case, the victim's lack of awareness of the attack can be gleaned from the nature, the number and the location of his wounds. Furthermore, the testimony of Marianito Rafael, against whom no ill motive was imputed by the appellant, likewise established this fact. The former testified:

"Q......You mean to say that you were present when he was hacked?

A......Yes, sir.

Q......In what place was he hacked?

x x x......x x x......x x x

A......Near the house of Efren Mendoza.

Q......Why were you there? x x x

A......Because I asked for water from Emily Mendoza.

Q......And Anchito Nano was also there?

x x x......x x x......x x x

A......We were together.

x x x......x x x......x x x

Q......You mean to say that after you had a drink, Efren Mendoza came?

A......He came out suddenly.

Q......x x x [W]here did he come from?

A......He came from outside of the house.

Q......What did [he] do upon arriving, if any, this Efren Mendoza?

A......He suddenly hacked.

Q.......Who?

A......Anchito Nano.

x x x......x x x......x x x

Q......How many times was Anchito Nano hacked by Efren Mendoza, if you know?

A......I only saw once, I ran away after seeing the first hack."²⁶cräläwvirtualibräry

Voluntary Surrende r

Appellant argues that the mitigating circumstance of voluntary surrender should be appreciated in his favor, because he immediately went to the Municipal Hall and surrendered to the police on the night of the incident.

We agree. To establish this mitigating circumstance, the following three requisites must be shown: (a) the offender has not been actually arrested; (2) the offender surrenders himself to a person in authority or the latter's agent; and (c) the surrender is voluntary.²⁷ The defense must show intent to surrender unconditionally to the authorities, either because of an acknowledgement of guilt or because of a wish to spare them the trouble and the expense concomitant to the search and the capture of the accused.²⁸cräläwvirtualibräry

In this case, all these requisites were proven. Appellants assertion that he surrendered was corroborated by Chief Inspector Bayani Aguilar, Vinzons chief of police, who issued a Certification that "one Efren Mendoza x x x voluntarily surrendered [to] this station, including his bolo x x x which was used to hack 3 times a certain Yoyoy Nano x x x."²⁹ Contrary to the submission of the solicitor general,³⁰ the surrender of appellant was unconditional. He readily admitted that he had hacked the victim and subsequently put himself under police custody.

Furthermore, we hold that the trial court erred in ruling that voluntary surrender was "offset by the aggravating circumstance of treachery."³¹ The court a quo failed to appreciate the distinction between a generic aggravating circumstance and a qualifying one.

A qualifying circumstance changes the nature of the crime. A generic aggravating circumstance, on the other hand, does not affect the designation of the crime; it merely provides for the imposition of the prescribed penalty in its maximum period. Thus, while a generic aggravating circumstance may be offset by a mitigating circumstance, a qualifying circumstance may not.³²cräläwvirtualibräry

Treachery in the present case is a qualifying, not a generic aggravating circumstance. Its presence served to characterize the killing as murder; it cannot at the same time be considered as a generic aggravating circumstance to warrant the imposition of the maximum penalty. Thus, it cannot offset voluntary surrender.

The Proper Penalty

When the crime was committed on July 14, 1993, the penalty for murder was reclusion temporal, in its maximum period, to death.³³ At the time, however, RA 7659 which reimposed the death penalty was not yet in effect. In any event, the presence of the mitigating circumstance of voluntary surrender impels the imposition of the minimum period of the applicable penalty,³⁴ reclusion temporal (maximum). Applying the Indeterminate Sentence Law,³⁵ appellant should be sentenced to prision mayor in its maximum period to reclusion temporal also in its maximum period.

Civil Indemnity

Citing People v. Victor,³⁶ the solicitor general argues that the civil indemnity should be raised from P50,000 to P75,000. This is erroneous. In the said case, the Court held that "starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity for the victim shall be in the increased amount of not less than P75,000.00." Obviously, that ruling, which involved rape and imposed the death penalty, cannot apply to the present case. Hence, consistent with current jurisprudence,³⁷ we affirm the award of P50,000 as indemnity ex delicto.

Likewise, we affirm the award of moral damages in the sum of P30,000 for the anguish and the wounded feelings suffered by the victims heirs, which were duly proven.

WHEREFORE , the assailed Decision of the Regional Trial Court is AFFIRMED with the modification that appellant is hereby sentenced to an indeterminate penalty of 10 years and 1 day of prision mayor (maximum) to 17 years, 4 months and 1 day of reclusion temporal (maximum). All other awards are AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.

¹ The Information, dated September 6, 1993, was signed by Provincial Prosecutor Pascualita Duran-Cereno.

² Rollo, p. 6; records, p. 1.

³ Records, pp. 10-11.

⁴ Penned by Judge Sancho Dames II.

⁵ Rollo, p. 28.

⁶ The case was deemed submitted for decision upon receipt by this Court of the Appellees Brief on May 31, 1999. The filing of a reply brief was deemed waived, as none was submitted within the reglementary period.

⁷ Signed by Assistant Solicitor General Carlos N. Ortega, Assistant Solicitor General Magdangal M. de Leon and Solicitor Ronaldo B. Martin.

⁸ Appellees Brief, pp. 3-5.

⁹ Appellants Brief was signed by Attys. Arceli A. Rubin, Bartolome P. Reus and Rogel F. Quijano of the Public Attorneys Office.

¹⁰ Appellants Brief, pp. 4-6; rollo, pp. 47-49.

¹¹ RTC Decision, pp. 7-8; rollo, pp. 26-27.

¹² Ibid., p. 8; rollo, p. 27.

¹³ Appellants Brief, p. 1; rollo, p. 44.

¹⁴ TSN, March 27, 1995, pp. 4-8.

¹⁵ Art. 11 (1 and 2), Revised Penal Code, which reads:

"Art. 11. Justifying circumstances. The following do not incur any criminal liability.

1. Anyone who acts in defense of his person or rights provided that the following circumstances concur:

First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.

2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present and the further requisite, in case the provocation was given by the person attacked, that the one making the defense had no part therein."

¹⁶ People v. Cawaling, 293 SCRA 267, July 28, 1998; People v. Cayabyab, 274 SCRA 387, June 19, 1997; People v. Camahalan, 241 SCRA 558, February 22, 1995; People v. Peones, 200 SCRA 625, August 16, 1991; People v. Bausing, 199 SCRA 355, July 18, 1991.

¹⁷ TSN, July 31, 1996, pp. 4-6.

¹⁸ TSN, May 31, 1994, p. 17. Silverio Rafael testified:

"Q......What did you observe immediately within the surrounding of the body of the victim?

A......There was none. There was no sign of commotion or trouble whatsoever.

Q......Did you also find any weapon within the vicinity where the corpse of the victim was found?

A......There was none."

¹⁹ Exhibits "C," "C-1," "C-2," "C-3" and "C-4." Records, pp. 88-A, B, C, D and E.

²⁰ TSN, June 28, 1995, p. 5. Edwin Mendoza declared:

"Q......And what happened to you after you were hacked by Anchito Nano?

A......I lost consciousness, sir."

²¹ TSN, October 22, 1996, p. 6.

²² TSN, March 10, 1994, p. 19.

²³ People v. Ferrer, 255 SCRA 19, March 14, 1996; People v. Lua, 256 SCRA 539, April 26, 1996.

²⁴ People v. Rebamontan, 305 SCRA 609, April 13, 1999; People v. Cawaling, 293 SCRA 267, July 28, 1998; People v. Sol, 272 SCRA 392, May 7, 1997.

²⁵ Article 14, par. 16, Revised Penal Code.

²⁶ TSN, March 9, 1994, pp. 9-13.

²⁷ People v. Deopante, 263 SCRA 691, October 30, 1996.

²⁸ People v. Ramos, 296 SCRA 559, September 25, 1998; People v. Umadhay, 293 SCRA 545, August 3, 1998.

²⁹ Records, p. 190.

³⁰ Brief for the Appellee, p. 10.

³¹ Decision, p. 9; rollo, p. 28.

³² Reyes, The Revised Penal Code, Book One, 12th ed., pp. 316-317.

³³ Under RA 7659, which took effect on December 31, 1993, the penalty for murder is now reclusion perpetua to death.

³⁴ Article 64 (2), Revised Penal Code.

³⁵ Section 2 of the Indeterminate Sentence Law provides that it does not apply "to persons convicted of offenses punished with death penalty or life imprisonment; x x x." (emphasis supplied) Because the law used the word "punished" instead of "punishable," what should be considered is the penalty actually imposed, not the imposable penalty. (Reyes, supra, p. 778; see also People v. Moises, 66 SCRA 151, August 13, 1975.) Accordingly, the law should be applied in this case, because the maximum penalty actually imposed is reclusion temporal in its maximum period.

³⁶ GR No. 127903, pp. 15-16, July 9, 1998, per curiam.

³⁷ People v. Quitlong, GR No. 121562, July 10, 1998; People v. Lagarteja, GR No. 127095, June 22, 1998; People v. Marollano, GR No. 105004, July 24, 1997; and People v. Caballes, GR No. 102723-24, June 19, 1997.