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100 SUPREME COURT REPORTS ANNOTATED

People vs. Dela Cruz

*
G.R. No. 128359. December 6, 2000.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ROBERTO E.DELA CRUZ, accused-appellant.

Criminal Law; Murder; Justifying Circumstances; Self-

Defense; When self-defense is invoked, the burden of evidence shifts
to the accused to show that the killing has been legally justified.—
When self-defense is invoked, the burden of evidence shifts to the
accused to show that the killing has been legally justified. Having
owned the killing of the victim, the accused should be able to
prove to the satisfaction of the court the elements of self-defense
in order that he might be able to rightly avail himself of the
extenuating circumstance. 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.
All theseconditions must concur.
Same; Same; Same; Same; Unlawful aggression, a primordial
ele-ment 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—but,
most importantly, at the time the defensive action was taken
against the aggressor.—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—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,

_______________

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* EN BANC.

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People vs. Dela Cruz

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, accused-appellant,
taking his .38 caliber revolver, again opened the bedroom door
and, brandishing his own firearm, forthwith confronted the
victim. At this encounter, accused-appellant would be quite
hardput to still claim self-defense.
Same; Same; Same; Same; When the accused, 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 could no longer correctly
argue that there utterly was no provocation on his part.—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 accused-appellant, 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.
Same; Illegal Possession of Firearm; Elements.—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.
Same; Mitigating Circumstances; Voluntary Surrender; The
mitigating circumstance of voluntary surrender should be
considered in favor of accused where immediately following the
shooting incident, he instructed his live-in partner to call the police
and report the incident and waited for their arrival and readily
acknowledged before them his shooting the victim.—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 acknowledged before them his having
been responsible for the shooting of the victim.

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AUTOMATIC REVIEW of a decision of the Regional Trial

Court of Cabanatuan City, Br. 27.

The facts are stated in the opinion of the Court.

     The Solicitor General for plaintiff-appellee.

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102 SUPREME COURT REPORTS ANNOTATED

People vs. Dela Cruz

     Pompeyo L. Bautista for accused-appellant.

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 Firearmand
Ammunition with Homicide.”
The information charging the accused with the offense,
to which hepled “notguilty” 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, wilfully, 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
1
on
different parts of his body, which caused also his death.”

The facts relied upon by the trial court in its judgment

were narrated by the Office of the SolicitorGeneral in the
People’sbrief.

“The victim 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 dela 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 o’clock 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

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by Macapagal who made his way inside the house holding a gun
in his hand, despite San Antonio’s 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 closed bedroom where
appellant was and banged at the door with his gun while yelling
‘Come out.

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1 Rollo, p. 11.

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People vs. Dela Cruz

Come out’ (p. 4, Ibid.). Appellant then opened the door but he was
greeted by Macapagal’s 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 other’s 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 killedMacapagal 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
2
of the .38 caliber revolver
he used, had no license therefor.”

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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

_______________

2 Rollo, pp. 125-127.

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People vs. Dela Cruz

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;3
and the sum of
P2,865,600.00 representing loss of income.”

In his plea to this Court, accused-appellant submits that

the decision ofthe courta quoisbereft of factual and
legaljustification.
When self-defense is invoked, the burden of evidence
shifts to the accused
4
to show that the killing has been
legally justified. Having owned the killing of the victim,
the accused should be able to prove to the satisfaction of
the court the elements of self-defense in order that he
might be able5 to rightly avail himself of the extenuating
circumstance. 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 sufficient6 provocation on the
part of the person
7
defending himself. All these conditions
must concur.
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
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of a person—not
8
a mere threatening or intimidating
attitude —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

______________

3 Rollo, p. 38.
4 People vs. Galapin, 293 SCRA 474 (1998).
5 People vs. Baniel, 275 SCRA 472 (1997).
6 See People vs. Demonteverde, 290 SCRA 175 (1998).
7 Art. 11, par. 1, Revised Penal Code.
8 People vs. De Gracia, 264 SCRA 200 (1996).

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People vs. Dela Cruz

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,
accused-appellant, taking his .38 caliber revolver, again
opened the bedroom door and, brandishing his own firearm,
forthwith confronted the victim. At this encounter, accused-
appellant9
would be quite hardput to still claim self-
defense.
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 10
existence of this indispensable component of self-defense.
The autopsy report would show that the victim
sustainedfourgunshot wounds—

“1. Gunshot wound on the (L) shoulder as point of entry with

trajectory toward the (L) supra-scapular area as point of
exit (through-through);
“2. Gunshot wound on the abdomen CD side laterally as point
of entry (+) for burned gun powder superficially with
trajectory towards on the same side as point of
exit,through-through;
“3. Gunshot wound on the anterior chest (L) midclavicular
line, level 5th ICS as point of entry with trajectory
towards the (L) flank as point of exit (through-through)
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Internally: penetrating the heart (through-through)

anterior then posterior then (L) hemidiaprhagm and
stomach; and
11
“4. Laceratedwound linear 1/2 inch in length (L) cheek area”
—
12
whichwould, infact, indicate a determined effort tokill.

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 accused-
appellant, opening the bedroom

_______________

9 Unlawful aggression is, of course, primordial; it must be real, i.e., an

actual, sudden, and unexpected attack or an imminent danger thereof,
and not just a threatening or intimidating attitude. (People vs. Maalat,
275 SCRA 206 [1997]).
10 People vs. Babor, 262 SCRA 359 (1996).
11 Rollo, p. 34.
12 People vs. Maceda, 197 SCRA 499 (1991).

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People vs. Dela Cruz

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
noprovocationon 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 13
(3) the absenceof the
corresponding license therefor.
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 Sincethe last week of April, sir.
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“Q Didyou 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 replyas 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 me14 that we can use that gun for
protection, sir.”

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 circum-

_______________

13 People vs. Beisante, 286 SCRA 629 (1998).

14 TSN, 17 October 1996, p. 20.

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People vs. Dela Cruz

stance.” The provision is clear,

15
and there would be no need
to still belabor the matter.
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
acknowledged before them 16
his having been responsible for
the shooting of thevictim.
The aggravating circumstance of the use of unlicensed
firearm being effectively offset by 17the mitigating
circumstance of voluntary surrender, the penalty
prescribed by law 18
for the offense should be imposed in its
medium period. Article 249 of the Revised Penal Code
prescribes the penalty of reclusion temporal in the crime of
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homicide, the range of which is twelve (12) years and one

(1) day to twenty (20) years. Applying the Indeterminate
Sentence Law, the maximum of the 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 victim’s surviving spouse, Marina
Villa Juan Macapagal, on the earning capacity of her
husband Daniel Macapagal sufficiently established
19
the
basis for making possible such an award. The deceased
was 44 years old at the time of his death in 1996, with a

_______________

15 People vs. Molina, 292 SCRA 742 (1998).

16 The elements of voluntary surrender are that (1) the offender has not
been actually arrested; (2) he surrender himself to a person in authority or
an agent of a person in authority; and (3) his surrender was voluntary
(People vs. Medina, 286 SCRA 44 [1998]).
17 Presidential Decree No. 1866 not having provided otherwise.
18 Article 64, Revised Penal Code.
19 People vs. Verde, 302 SCRA 690 (1999); Pantranco North Express,
Inc. vs. Baesa, 179 SCRA 384 (1989).

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People vs. Dela Cruz

20
gross monthly income of P9,950.00. In accordance with
the American 21
Expectancy Table of Mortality adopted in
several cases decided by this Court, the loss of his earning
capacity should be calculated thusly:

          Gross       living

less
Net earning = life x     annual -     expenses
capacity (x) expectancy
          income      (50% of
gross
           annual
income)

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or

x = 2(80-44) x [119,400.00 - 59,700.00]

     3
= 24 x 59,700.00
= 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
pri-sion 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 by the
same disciplinary rules imposed upon convicted prisoners
pursuant to Article 29 of the Revised Penal Code.

_______________

20 TSN of Marina Macapagal, 15 August 1996, p. 10.

21 People vs. Verde, 302 SCRA 690 (1999); Sanitary Steam Laundry,
Inc. vs. Court of Appeals, 300 SCRA 20 (1998); Metro Manila Transit
Corp. vs. Court of Appeals, 298 SCRA 495 (1998); Negros Navigation Co.,
Inc. vs. Court of Appeals, 281 SCRA 534 (1997); Villa-Rey Transit, Inc. vs.
Court of Appeals, 31 SCRA 511 (1970).

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People vs. Mariano

SO ORDERED.

     Davide, Jr. (C.J.), Bellosillo, Melo, Puno, Kapunan,

Mendoza, Panganiban, Quisumbing, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ.,
concur.

Judgment modified.

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Notes.—When an unlawful aggression ceases to exist,

the one making a defense has no right to kill or injure the
former aggressor. (People vs. Bitoon, Sr., 309 SCRA 209
[1999])
It is axiomatic that mere thrusting of one’s hand into his
pocket as if for the purpose of drawing a weapon is not
unlawful aggression. (People vs. Patalinghug, 318 SCRA
116 [1999])

——o0o——

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