G.R. No.

182748 | December 13, 2011 On July 1, 2005 the RTC rendered judgment, finding Arnel guilty
beyond reasonable doubt of frustrated homicide and sentenced him
ARNEL COLINARES, Petitioner, to suffer imprisonment from two years and four months of prision
vs. correccional, as minimum, to six years and one day of prision mayor,
PEOPLE OF THE PHILIPPINES, Respondent. as maximum. Since the maximum probationable imprisonment under
the law was only up to six years, Arnel did not qualify for probation.
DECISION
Arnel appealed to the Court of Appeals (CA), invoking self-defense
and, alternatively, seeking conviction for the lesser crime of
ABAD, J.:
attempted homicide with the consequent reduction of the penalty
imposed on him. The CA entirely affirmed the RTC decision but
This case is about a) the need, when invoking self-defense, to prove deleted the award for lost income in the absence of evidence to
all that it takes; b) what distinguishes frustrated homicide from support it.3 Not satisfied, Arnel comes to this Court on petition for
attempted homicide; and c) when an accused who appeals may still review.
apply for probation on remand of the case to the trial court.
In the course of its deliberation on the case, the Court required Arnel
The Facts and the Case and the Solicitor General to submit their respective positions on
whether or not, assuming Arnel committed only the lesser crime of
The public prosecutor of Camarines Sur charged the accused Arnel attempted homicide with its imposable penalty of imprisonment of
Colinares (Arnel) with frustrated homicide before the Regional Trial four months of arresto mayor, as minimum, to two years and four
Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-2213.1 months of prision correccional, as maximum, he could still apply for
probation upon remand of the case to the trial court.
Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in
the evening on June 25, 2000, he and Jesus Paulite (Jesus) went out Both complied with Arnel taking the position that he should be
to buy cigarettes at a nearby store. On their way, Jesus took a leak by entitled to apply for probation in case the Court metes out a new
the roadside with Rufino waiting nearby. From nowhere, Arnel penalty on him that makes his offense probationable. The language
sneaked behind and struck Rufino twice on the head with a huge and spirit of the probation law warrants such a stand. The Solicitor
stone, about 15 ½ inches in diameter. Rufino fell unconscious as Jesus General, on the other hand, argues that under the Probation Law no
fled. application for probation can be entertained once the accused has
perfected his appeal from the judgment of conviction.
Ananias Jallores (Ananias) testified that he was walking home when
he saw Rufino lying by the roadside. Ananias tried to help but The Issues Presented
someone struck him with something hard on the right temple,
knocking him out. He later learned that Arnel had hit him. The case essentially presents three issues:

Paciano Alano (Paciano) testified that he saw the whole incident since 1. Whether or not Arnel acted in self-defense when he
he happened to be smoking outside his house. He sought the help of struck Rufino on the head with a stone;
a barangay tanod and they brought Rufino to the hospital.
2. Assuming he did not act in self-defense, whether or not
Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Arnel is guilty of frustrated homicide; and
Rufino suffered two lacerated wounds on the forehead, along the
hairline area. The doctor testified that these injuries were serious and
3. Given a finding that Arnel is entitled to conviction for a
potentially fatal but Rufino chose to go home after initial treatment.
lower offense and a reduced probationable penalty,
whether or not he may still apply for probation on remand
The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel of the case to the trial court.
claimed self-defense. He testified that he was on his way home that
evening when he met Rufino, Jesus, and Ananias who were all quite
The Court’s Rulings
drunk. Arnel asked Rufino where he supposed the Mayor of Tigaon
was but, rather than reply, Rufino pushed him, causing his fall. Jesus
and Ananias then boxed Arnel several times on the back. Rufino tried One. Arnel claims that Rufino, Jesus, and Ananias attacked him first
to stab Arnel but missed. The latter picked up a stone and, defending and that he merely acted in self-defense when he hit Rufino back with
himself, struck Rufino on the head with it. When Ananias saw this, he a stone.
charged towards Arnel and tried to stab him with a gaff. Arnel was
able to avoid the attack and hit Ananias with the same stone. Arnel When the accused invokes self-defense, he bears the burden of
then fled and hid in his sister’s house. On September 4, 2000, he showing that he was legally justified in killing the victim or inflicting
voluntarily surrendered at the Tigaon Municipal Police Station. injury to him. The accused must establish the elements of self-
defense by clear and convincing evidence. When successful, the
Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre- otherwise felonious deed would be excused, mainly predicated on the
wedding party on the night of the incident. His three companions lack of criminal intent of the accused.4
were all drunk. On his way home, Diomedes saw the three engaged
in heated argument with Arnel. In homicide, whether consummated, frustrated, or attempted, self-
defense requires (1) that the person whom the offender killed or
injured committed unlawful aggression; (2) that the offender
employed means that is reasonably necessary to prevent or repel the A: No, all traumatic injuries are potentially treated.
unlawful aggression; and (3) that the person defending himself did
not act with sufficient provocation.5 Q: But in the case of the victim when you treated him the wounds
actually are not fatal on that very day?
If the victim did not commit unlawful aggression against the accused,
the latter has nothing to prevent or repel and the other two requisites A: I could not say, with the treatment we did, prevent from
of self-defense would have no basis for being appreciated. Unlawful becoming fatal. But on that case the patient preferred to go home
aggression contemplates an actual, sudden, and unexpected attack or at that time.
an imminent danger of such attack. A mere threatening or
intimidating attitude is not enough. The victim must attack the
Q: The findings also indicated in the medical certificate only refers
accused with actual physical force or with a weapon.6
to the length of the wound not the depth of the wound?

Here, the lower courts found that Arnel failed to prove the element
A: When you say lacerated wound, the entire length of the layer of
of unlawful aggression. He alone testified that Jesus and Ananias
scalp.
rained fist blows on him and that Rufino and Ananias tried to stab
him. No one corroborated Arnel’s testimony that it was Rufino who
started it. Arnel’s only other witness, Diomedes, merely testified that Q: So you could not find out any abrasion?
he saw those involved having a heated argument in the middle of the
street. Arnel did not submit any medical certificate to prove his point A: It is different laceration and abrasion so once the skin is broken
that he suffered injuries in the hands of Rufino and his companions. 7 up the label of the frontal lo[b]e, we always call it lacerated wound,
but in that kind of wound, we did not measure the depth.13
In contrast, the three witnesses—Jesus, Paciano, and Ananias—
testified that Arnel was the aggressor. Although their versions were Indeed, Rufino had two lacerations on his forehead but there was no
mottled with inconsistencies, these do not detract from their core indication that his skull incurred fracture or that he bled internally as
story. The witnesses were one in what Arnel did and when and how a result of the pounding of his head. The wounds were not so deep,
he did it. Compared to Arnel’s testimony, the prosecution’s version is they merely required suturing, and were estimated to heal in seven
more believable and consistent with reality, hence deserving or eight days. Dr. Belleza further testified:
credence.8
Q: So, in the medical certificate the wounds will not require surgery?
Two. But given that Arnel, the accused, was indeed the aggressor,
would he be liable for frustrated homicide when the wounds he A: Yes, Madam.
inflicted on Rufino, his victim, were not fatal and could not have
resulted in death as in fact it did not?
Q: The injuries are slight?
The main element of attempted or frustrated homicide is the
accused’s intent to take his victim’s life. The prosecution has to prove A: 7 to 8 days long, what we are looking is not much, we give
this clearly and convincingly to exclude every possible doubt antibiotics and antit[e]tanus – the problem the contusion that
regarding homicidal intent.9 And the intent to kill is often inferred occurred in the brain.
from, among other things, the means the offender used and the
nature, location, and number of wounds he inflicted on his victim. 10 xxxx

Here, Arnel struck Rufino on the head with a huge stone. The blow Q: What medical intervention that you undertake?
was so forceful that it knocked Rufino out. Considering the great size
of his weapon, the impact it produced, and the location of the wounds A: We give antibiotics, Your Honor, antit[e]tanus and suturing the
that Arnel inflicted on his victim, the Court is convinced that he wounds.
intended to kill him.
Q: For how many days did he stay in the hospital?
The Court is inclined, however, to hold Arnel guilty only of attempted,
not frustrated, homicide. In Palaganas v. People, 11 we ruled that
A: Head injury at least be observed within 24 hours, but some of
when the accused intended to kill his victim, as shown by his use of a
them would rather go home and then come back.
deadly weapon and the wounds he inflicted, but the victim did not die
because of timely medical assistance, the crime is frustrated murder
or frustrated homicide. If the victim’s wounds are not fatal, the crime Q: So the patient did not stay 24 hours in the hospital?
is only attempted murder or attempted homicide.
A: No, Your Honor.
Thus, the prosecution must establish with certainty the nature,
extent, depth, and severity of the victim’s wounds. While Dr. Belleza Q: Did he come back to you after 24 hours?
testified that "head injuries are always very serious," 12 he could not
categorically say that Rufino’s wounds in this case were "fatal." Thus: A: I am not sure when he came back for follow-up.14

Q: Doctor, all the injuries in the head are fatal? Taken in its entirety, there is a dearth of medical evidence on record
to support the prosecution’s claim that Rufino would have died
without timely medical intervention. Thus, the Court finds Arnel liable ask! Still, he chose to appeal, seeking an acquittal, hence clearly
only for attempted homicide and entitled to the mitigating waiving his right to apply for probation. When the acquittal did not
circumstance of voluntary surrender. come, he wanted probation. The Court would not of course let him. It
served him right that he wanted to save his cake and eat it too. He
Three. Ordinarily, Arnel would no longer be entitled to apply for certainly could not have both appeal and probation.
probation, he having appealed from the judgment of the RTC
convicting him for frustrated homicide. The Probation Law, said the Court in Francisco, requires that an
accused must not have appealed his conviction before he can avail
But, the Court finds Arnel guilty only of the lesser crime of attempted himself of probation. This requirement "outlaws the element of
homicide and holds that the maximum of the penalty imposed on him speculation on the part of the accused—to wager on the result of his
should be lowered to imprisonment of four months of arresto mayor, appeal—that when his conviction is finally affirmed on appeal, the
as minimum, to two years and four months of prision correccional, as moment of truth well-nigh at hand, and the service of his sentence
maximum. With this new penalty, it would be but fair to allow him inevitable, he now applies for probation as an ‘escape hatch’ thus
the right to apply for probation upon remand of the case to the RTC. rendering nugatory the appellate court’s affirmance of his
conviction."17
Some in the Court disagrees. They contend that probation is a mere
privilege granted by the state only to qualified convicted offenders. Here, however, Arnel did not appeal from a judgment that would
Section 4 of the probation law (PD 968) provides: "That no application have allowed him to apply for probation. He did not have a choice
for probation shall be entertained or granted if the defendant has between appeal and probation. He was not in a position to say, "By
perfected the appeal from the judgment of conviction." 15 Since Arnel taking this appeal, I choose not to apply for probation." The stiff
appealed his conviction for frustrated homicide, he should be penalty that the trial court imposed on him denied him that choice.
deemed permanently disqualified from applying for probation. Thus, a ruling that would allow Arnel to now seek probation under
this Court’s greatly diminished penalty will not dilute the sound ruling
in Francisco. It remains that those who will appeal from judgments of
But, firstly, while it is true that probation is a mere privilege, the point
conviction, when they have the option to try for probation, forfeit
is not that Arnel has the right to such privilege; he certainly does not
their right to apply for that privilege.
have. What he has is the right to apply for that privilege. The Court
finds that his maximum jail term should only be 2 years and 4 months.
If the Court allows him to apply for probation because of the lowered Besides, in appealing his case, Arnel raised the issue of correctness of
penalty, it is still up to the trial judge to decide whether or not to grant the penalty imposed on him. He claimed that the evidence at best
him the privilege of probation, taking into account the full warranted his conviction only for attempted, not frustrated,
circumstances of his case. homicide, which crime called for a probationable penalty. In a way,
therefore, Arnel sought from the beginning to bring down the penalty
to the level where the law would allow him to apply for probation.
Secondly, it is true that under the probation law the accused who
appeals "from the judgment of conviction" is disqualified from
availing himself of the benefits of probation. But, as it happens, two In a real sense, the Court’s finding that Arnel was guilty, not of
judgments of conviction have been meted out to Arnel: one, a frustrated homicide, but only of attempted homicide, is an original
conviction for frustrated homicide by the regional trial court, now set conviction that for the first time imposes on him a probationable
aside; and, two, a conviction for attempted homicide by the Supreme penalty. Had the RTC done him right from the start, it would have
Court. found him guilty of the correct offense and imposed on him the right
penalty of two years and four months maximum.lavvphil This would
have afforded Arnel the right to apply for probation.
If the Court chooses to go by the dissenting opinion’s hard position, it
will apply the probation law on Arnel based on the trial court’s
annulled judgment against him. He will not be entitled to probation The Probation Law never intended to deny an accused his right to
because of the severe penalty that such judgment imposed on him. probation through no fault of his. The underlying philosophy of
More, the Supreme Court’s judgment of conviction for a lesser probation is one of liberality towards the accused. Such philosophy is
offense and a lighter penalty will also have to bend over to the trial not served by a harsh and stringent interpretation of the statutory
court’s judgment—even if this has been found in error. And, worse, provisions.18 As Justice Vicente V. Mendoza said in his dissent in
Arnel will now also be made to pay for the trial court’s erroneous Francisco, the Probation Law must not be regarded as a mere
judgment with the forfeiture of his right to apply for probation. Ang privilege to be given to the accused only where it clearly appears he
kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the comes within its letter; to do so would be to disregard the teaching in
carabao gets the whip). Where is justice there? many cases that the Probation Law should be applied in favor of the
accused not because it is a criminal law but to achieve its beneficent
purpose.19
The dissenting opinion also expresses apprehension that allowing
Arnel to apply for probation would dilute the ruling of this Court in
Francisco v. Court of Appeals 16 that the probation law requires that One of those who dissent from this decision points out that allowing
an accused must not have appealed his conviction before he can avail Arnel to apply for probation after he appealed from the trial court’s
himself of probation. But there is a huge difference between judgment of conviction would not be consistent with the provision of
Francisco and this case. Section 2 that the probation law should be interpreted to "provide an
opportunity for the reformation of a penitent offender." An accused
like Arnel who appeals from a judgment convicting him, it is claimed,
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the
shows no penitence.
accused guilty of grave oral defamation and sentenced him to a prison
term of one year and one day to one year and eight months of prision
correccional, a clearly probationable penalty. Probation was his to
This may be true if the trial court meted out to Arnel a correct MARIA LOURDES P. A. BIENVENIDO L. REYES
judgment of conviction. Here, however, it convicted Arnel of the SERENO Associate Justice
wrong crime, frustrated homicide, that carried a penalty in excess of Associate Justice
6 years. How can the Court expect him to feel penitent over a crime,
which as the Court now finds, he did not commit? He only committed ESTELA M. PERLAS-BERNABE
attempted homicide with its maximum penalty of 2 years and 4 Associate Justice
months. CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby
Ironically, if the Court denies Arnel the right to apply for probation certified that the conclusions in the above Decision had been
under the reduced penalty, it would be sending him straight behind reached in consultation before the case was assigned to the writer
bars. It would be robbing him of the chance to instead undergo of the opinion of the Court.
reformation as a penitent offender, defeating the very purpose of the
probation law. RENATO C. CORONA
Chief Justice
At any rate, what is clear is that, had the RTC done what was right and
imposed on Arnel the correct penalty of two years and four months
maximum, he would have had the right to apply for probation. No one Footnotes
could say with certainty that he would have availed himself of the
right had the RTC done right by him. The idea may not even have 1 Records, p. 25.
crossed his mind precisely since the penalty he got was not 2 Id. at 2.
probationable. 3 Rollo, pp. 109-128. Penned by Associate Justice Rebecca

De Guia-Salvador, with Associate Justices Magdangal M.

The question in this case is ultimately one of fairness. Is it fair to deny de Leon and Ricardo R. Rosario concurring.
Arnel the right to apply for probation when the new penalty that the 4 People v. Dagani, G.R. No. 153875, August 16, 2006, 499

Court imposes on him is, unlike the one erroneously imposed by the SCRA 64, 73-74.
trial court, subject to probation? 5 Oriente v. People, G.R. No. 155094, January 30, 2007,

513 SCRA 348, 359.

6 People v. Se, 469 Phil. 763, 770 (2004).
WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES
7 Records, pp. 245-246 (TSN, May 5, 2004, pp. 28-29).
the Decision dated July 31, 2007 of the Court of Appeals in CA-G.R. CR
8 People v. Enfectana, 431 Phil. 64, 76 (2002).
29639, FINDS petitioner Arnel Colinares GUILTY beyond reasonable
9 People v. Pagador, 409 Phil. 338, 351 (2001).
doubt of attempted homicide, and SENTENCES him to suffer an
10 Rivera v. People, 515 Phil. 824, 832 (2006).
indeterminate penalty from four months of arresto mayor, as
11 G.R. No. 165483, September 12, 2006, 501 SCRA 533,
minimum, to two years and four months of prision correccional, as
maximum, and to pay Rufino P. Buena the amount of ₱20,000.00 as 555-556.
12 Records, p. 82 (TSN, June 17, 2002, p. 6).
moral damages, without prejudice to petitioner applying for
13 Id. at 83-84 (id. at 7-8).
probation within 15 days from notice that the record of the case has
14 Id. at 84-85 (id. at 8-9).
been remanded for execution to the Regional Trial Court of San Jose,
15 Sec. 4, Presidential Decree 968 also known as the
Camarines Sur, in Criminal Case T-2213.
Probation Law of 1976, provides: SEC. 4. Grant of
Probation. – Subject to the provisions of this Decree, the
SO ORDERED.
trial court may, after it shall have convicted and sentenced
a defendant, and upon application by said defendant
ROBERTO A. ABAD within the period for perfecting an appeal, suspend the
Associate Justice execution of the sentence and place the defendant on
probation for such period and upon such terms and
WE CONCUR: conditions as it may deem best; Provided, That no
application for probation shall be entertained or granted if
RENATO C. CORONA the defendant has perfected the appeal from the
Chief Justice judgment of conviction.
Probation may be granted whether the sentence
ANTONIO T. CARPIO PRESBITERO J. VELASCO, imposes a term of imprisonment or a fine only.
Associate Justice JR. An application for probation shall be filed with
Associate Justice the trial court. The filing of the application shall
TERESITA J. LEONARDO-DE ARTURO D. BRION be deemed a waiver of the right to appeal.
CASTRO Associate Justice (Emphasis supplied)
Associate Justice An order granting or denying probation shall not
be appealable.
DIOSDADO M. PERALTA LUCAS P. BERSAMIN 16 313 Phil. 241, 255 (1995).
Associate Justice Associate Justice 17 Id.
MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR. 18 Yusi v. Honorable Judge Morales, 206 Phil. 734, 740
Associate Justice Associate Justice
(1983).
JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA 19 Francisco v. Court of Appeals, supra note 16, at 273.
Associate Justice Associate Justice