G.R. No.

146687              August 22, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
BONNIE R. RABANAL, accused-appellant.

DECISION

YNARES-SANTIAGO, J.:

In the early dawn of August 11, 1996, a drunken and armed Roberto Pascua was fatally shot by the
security guard of a building in Dagupan City, Pangasinan. The prosecution asserts that Pascua was
treacherously shot while the defense contends that it was an act of self-preservation.

The security guard, Bonnie R. Rabanal, was charged with Murder committed as follows:

That on or about the 11th day of August 1996, in the City of Dagupan, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused BONNIE R. RABANAL, being then
armed with a gun, with treachery and with intent to kill one ROBERTO PASCUA, did then and there
willfully, unlawfully and criminally attack, assault and use personal violence upon the latter by
shooting him, hitting him several times on vital parts of his body with the said gun, thereby causing
his death shortly thereafter due to "Cardio Respiratory Arrest, Massive Intra-thoracic and Intra-
Abdominal Hemorrhage, Gunshot Wound[s]" as per Autopsy Report and Certificate of Death, both
issued by Dr. Thomas G. Cornel, to the damage and prejudice of the legal heirs of said deceased,
ROBERTO PASCUA, in the amount of not less than FIFTY THOUSAND PESOS (P50,000.00),
Philippine currency, and other consequential damages.

Contrary to Article 248 of the Revised Penal Code, as amended by R.A. 7659. 1

The case was docketed as Criminal Case No. 96-01443-D of the Regional Trial Court of Dagupan
City, Branch 44. Accused-appellant entered a negative plea when arraigned. The case thereafter
2 

proceeded to trial.

The prosecution’s version of the incident:

At 2:00 a.m. of August 11, 1996, Freddie Soriano, a security guard of the CSI building in Dagupan
City, saw accused-appellant Bonnie Rabanal, a security guard of the McDonald’s restaurant located
in the same building, repeatedly shoot at close range the victim Rudy Pascua, the security
coordinator of the building. After the victim fell down, accused-appellant fired another shot and then
took the victim’s gun and fled.
3

The victim was rushed to the Pangasinan Provincial Hospital, Dagupan City, where he was declared
dead on arrival. The victim suffered four gunshot wounds on the chest, all of which were fatal.4

Accused-appellant, on the other hand, asserts that the fatal shooting of Rudy Pascua was an act of
self-defense. He alleges that on August 11, 1996, at 2:00 a.m., Pascua, who was armed and reeking
of alcohol, approached him at his usual post in front of the McDonald’s restaurant and suddenly
kicked the podium, causing it to fall on him. When accused-appellant asked what was the matter,
Pascua uttered, "You’re hard-headed security guards, I told you to give me P100.00 per head
monthly but you refused to give, are you going to give me or not?" He then drew his firearm and
said, "If that’s the thing you want to happen, I better kill you."
5
Accused-appellant pleaded for his life while Pascua demanded that he surrender his firearm.  While
1âwphi1

Pascua was reaching for accused-appellant’s holster, the latter pushed him and grabbed his gun.
Pascua lost his balance and staggered backwards. At that instant, accused-appellant drew his pistol
and pulled the trigger four times. Pascua fell to the ground. Accused-appellant then took the gun
from Pascua’s hand and brought it to the security agency as proof that somebody attempted to kill
him.6

That same day, accused-appellant voluntarily surrendered himself and Pascua’s firearm to Supt.
Enrique Galang at Camp Crame. He did not surrender at Dagupan because of Pascua’s influence as
bodyguard of Belen Fernandez. He was brought to the Lingayen Police Station the following day. 7

On October 24, 2000, the trial court rendered judgment convicting accused-appellant and imposing
on him the supreme penalty of death, thus:

WHEREFORE, the Court finds accused Bonnie R. Rabanal guilty beyond reasonable doubt of the
crime of Murder attended by the aggravating circumstance of cruelty and not offset by any mitigating
circumstances, and pursuant to law, accused Bonnie R. Rabanal is sentenced to suffer the Death
Penalty and to pay an indemnity of P50,000.00 to the heirs of the deceased.

The accused is ordered to pay P100,000.00 representing expenses during the wake and P60,000.00
for the coffin and tomb; P5,440,800.00 as indemnity for loss of earnings; and P50,000.00 as moral
damages.

The Service Revolver (caliber .38 with Serial No. 54913 [Exhibit 9] ) and the firearm with Serial
Number FG66801, 9 mm pistol, Colt MK IV, Exhibit "10", all in the possession of the City Prosecutor,
are ordered confiscated and forfeited in favor of the Government. The evidence custodian in the City
Prosecutor’s Office, Dagupan City, is ordered and directed to turn over the firearms immediately to
the Firearms and Explosives Division, Camp Crame, Quezon City.

With costs against the accused.

SO ORDERED. 8

Before us on automatic review, accused-appellant argues that:

A. THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT ALL ELEMENTS OF SELF-
DEFENSE WERE NOT OBTAINING BASED ON CONJECTURAL, PREPOSTEROUS, AND
ILLOGICAL REASONS.

B. THE TRIAL COURT GRAVELY ERRED IN FINDING TREACHERY. THERE WAS NO

TREACHERY IN A FACE TO FACE ENCOUNTER WITH DECEASED WHOSE FIREARM WAS
WITHIN EASY REACH. FURTHERMORE ACCUSED-APPELLANT NEVER EMPLOYED MEANS
TO ENSURE SUCCESS WITHOUT RISK TO HIMSELF.

C. THE TRIAL COURT GRAVELY ERRED FINDING CRUELTY BASED ON THE NUMBER OF
ALLEGED MORTAL WOUNDS SUSTAINED BY THE DECEASED. IT IS SUBMITTED THAT
CRUELTY REFERS TO THE MANNER OF EXECUTION AND NOT THE NUMBER OF MORTAL
WOUNDS INFLICTED IN SELF-DEFENSE.

D. THE TRIAL COURT GRAVELY ERRED IN FINDING THAT SINCE ACCUSED-APPELLANT

SURRENDERED AT CAMP CRAME AND NOT AT DAGUPAN VOLUNTARY SURRENDER MUST
NOT BE APPRECIATED. NO OTHER SUBMISSION COULD BEST ADDRESS SUCH RULING
THAN THAT THE PROFFERED REASON IS UTTERLY WHIMSICAL, TWISTED, AND SHAMEFUL
IN A SOCIETY OF THINKING MEN.

E. THE TRIAL COURT GRAVELY ERRED IN COMMITTING HIGHWAY ROBBERY BY AWARDING

AN UNCONSCIONABLE AMOUNT OF DAMAGES. 9

For self-defense to prosper, accused-appellant must prove by clear and convincing evidence the
following elements: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the
means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person
defending himself. Although all the three elements must concur, self-defense must rest firstly on
10 

proof of unlawful aggression on the part of the victim. If no unlawful aggression has been proved, no
self-defense may be successfully pleaded, whether complete or incomplete. In other words in self-
11 

defense, unlawful aggression is a primordial element. It presupposes an actual, sudden and

unexpected attack or imminent danger on the life and limb of a person – not a mere threatening or
intimidating attitude – at the time the defensive action was taken against the aggressor. 12

In the case at bar, even if we sustain the version of accused-appellant that the initial act of
aggression came from the deceased, we cannot uphold his plea of self-defense. While indeed, the
drunken victim initially brandished his handgun and aimed it at accused-appellant, the evidence
shows that he laid it down on the nearby concrete porchshortly before he was shot several times by
accused-appellant. 13

When the deceased laid down his gun, unlawful aggression had already ceased and it was no longer
necessary for accused-appellant to have fired successively the way he did at the
victim. Furthermore, we note that accused-appellant had shoved the intoxicated victim who
14 

staggered backwards. Hence, it was accused-appellant who became the aggressor when he,
despite such prevailing conditions, not to mention the inebriated physical state of the deceased,
proceeded to fire several shots at the victim. His act can no longer be interpreted as an act of self-
preservation but a perverse desire to kill.
15

Accused-appellant, however, insists that the unlawful aggression of the victim was a "continuing one
whether or not he momentarily tripped, lost his balance or did similar acts of temporary
character." Thus, he argues that even if the deceased lowered his guard at some point, he was still
16 

the aggressor. He also cites the fact that the victim was "predisposed to using violence and
intimidation while accused-appellant was simply a security guard doing his job;" and that the victim
was armed with the more powerful and sophisticated .9mm Colt MK IV series 80, while accused-
appellant merely had an inferior .38 caliber pistol.
17

These arguments fail to persuade.

There is unlawful aggression when the peril to one’s life, limb or right is either actual or imminent.
Actual peril to one’s life means that the danger must be present, that is, actually in existence, or
imminent in that the danger is on the point of happening. This cannot be said in this case because
18 

the victim was unarmed when he was shot by accused-appellant. Indeed, the danger had already
19 

ceased when the victim laid his gun down on the pavement, thus enabling accused-appellant to
push him away.

Furthermore, even assuming that the victim was a gun club member armed with a more powerful
handgun than that of accused-appellant, it must be pointed out that the deceased was at the time of
the incident a middle-aged and drunken 46 year-old, with impaired and slowed physical reflexes on
20 

account of his intoxication. Accused-appellant, on the other hand, was a youthful and sober 27 year-
old security guard, in full possession of his physical faculties. Accused-appellant stands 5’5" while
21 22 

the victim’s height was only 5’2". Suffice it to state that under such conditions, it would have been
23 

easy for the bigger, sober accused-appellant to subdue the intoxicated and already unarmed victim.

It must be remembered that the means employed by the person making a defense must be rationally
necessary to prevent or repel an unlawful aggression. What the law requires is a rational
24 

equivalence, in the consideration of which will enter as principal factors the emergency, the
imminent danger to which the person attacked is exposed, and the instinct more than reason, that
moves or impels the defense; and the proportionateness thereof does not depend upon the harm
done, but upon the imminent danger of such injury. 25

In other words, whether or not the means employed is reasonable will depend upon
the nature and quality of the weapon used by the aggressor, his physical condition, character,
size and other circumstances and those of the person defending himself as well as
the place and occasion of the assault. 26

In the case at bar, assuming arguendo that the aggression was continuing, the means employed by
accused-appellant in repelling the assault of the unarmed victim was not reasonable. It must be
noted that the deceased sustained four (4) gunshot wounds fired at close range, all of them
concentrated on the chest area and each of them fatal. It bears repeating in this regard that the
27 

nature and number of wounds inflicted by the accused are constantly and unremittingly considered
as important indicia which disprove the plea for self-defense because they demonstrate a
determined effort to kill the victim and not just defend oneself. 28

All told, the Court finds no reason to reverse the ruling of the court a quo insofar as accused-
appellant’s culpability is concerned.

This brings us to the second issue, concerning the propriety of the imposition by the trial court of the
death penalty on the ground that the killing was qualified by treachery and aggravated by cruelty.

It must be borne in mind that qualifying and aggravating circumstances which are taken into
consideration for the purpose of increasing the degree of the penalty imposed must be proven with
equal certainty as the commission of the act charged as criminal offense. 29

Murder is the unlawful killing of any person when qualified by any of the circumstances listed under
Article 248 of the Revised Penal Code. Treachery or alevosia, which is alleged in the information, is
30 

one such qualifying circumstance.

We do not agree with the trial court that the killing of Rudy Pascua was attended by alevosia. There
is treachery when the offender commits any of the crimes against persons, employing means,
methods or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make. In this case,
31 

the two elements of treachery are not present, i.e. (1) that at the time of the attack, the victim was
not in a position to defend himself, and (2) that the offender consciously adopted the particular
means, method or form of attack employed by him. The essence of treachery is the swift and
32 

unexpected attack on the unarmed victim without the slightest provocation on the part of the victim. 33

For treachery to be appreciated, it must be present and seen by the witness right at the inception of
the attack. Where no particulars are known as to how the killing began, its perpetration with
34

treachery cannot merely be supposed. In the case at bar, there was neither a description of how the
35 

attack was commenced – whether it was sudden, unexpected and whether the victim was caught
totally unaware – nor has there been a showing that the method of execution in the commission of
the crime was consciously or deliberately adopted by the malefactor.

To reiterate, the existence of alevosia must be based on positive or conclusive proof, not mere
suppositions or speculations, and must be proved as clearly and as convincingly as the killing
36 

itself. Any doubt as to the existence of treachery must be resolved in favor of the accused.
37  38

Likewise, the aggravating circumstance of cruelty cannot be appreciated in this case.  There is
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cruelty when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing
him unnecessary physical pain in the consummation of the criminal act. In other words, for cruelty to
39 

be appreciated, it must be shown that the accused, for his pleasure and satisfaction, caused the
victim to suffer slowly and painfully as he inflicted on him unnecessary physical and moral pain. The
crime is aggravated because by deliberately increasing the suffering of the victim, the offender
denotes sadism and, consequently, a marked degree of malice and perversity. 40

The test for determining the presence of cruelty is whether the accused deliberately and sadistically
augmented the victim’s suffering. Consequently, there must be proof that that the victim was made
41 

to agonize before he was killed. In this case, the wounds sustained by the victim came from four (4)
42 

gunshots fired in quick succession. Furthermore, other than the number and location of the wounds,
there is absolutely no evidence that would show accused-appellant’s cruelty and sadism. The mere
fact of inflicting several wounds successively upon a person to cause his death, with no appreciable
time intervening between the infliction of said injuries to show that the malefactor wanted to prolong
the suffering of the victim, is not sufficient to prove the existence of this aggravating circumstance. 43

The mitigating circumstance of voluntary surrender cannot be appreciated given the factual milieu of
this case. For voluntary surrender to mitigate criminal liability, the following elements must concur:
(1) the offender has not been actually arrested; (2) the offender surrendered himself to a person in
authority; and (3) the surrender was voluntary. For the circumstances of voluntary surrender, it is
44 

sufficient that it be spontaneous and made in a manner clearly indicating the intent of the accused to
surrender unconditionally, either because he acknowledges his guilt or wishes to save the authorities
the trouble and expense which will necessarily be incurred in searching for and capturing him. 45

In the case at bar, accused-appellant fled after the commission of the crime, taking with him the
victim’s gun, although the Dagupan City Police Station was just a few meters away from the locus
criminis. His supposed fear for the victim’s influence in the community has no basis, and, if at all,
even betrays his feelings of guilt at what transpired. As has been aptly ruled in People v. Herrera: 46

Flight strongly indicates a guilty mind and betrays the existence of a guilty conscience.  Indeed, flight
1âwphi1

is an implied admission of guilt and accused-appellant’s act of fleeing to Batangas after shooting the
victims cannot but betray his guilt and his desire to evade responsibility therefor. Certainly, a
righteous individual will not cower in fear and unabashedly admit the killing at the earliest
possible opportunity if he were morally justified in doing so. If the accused-appellant honestly
believed that his acts constituted self-defense against the unlawful aggression of the victim, he
should have reported the incident to the police instead of escaping and avoiding the
authorities. (Emphasis and italics supplied)

The circumstances that accused-appellant neither resisted arrest nor did he struggle to free himself
when he was taken into custody by the authorities do not amount to voluntary surrender. Indeed, it 47 

was only later that he decided to turn himself in. Needless to state, his surrender can hardly be
deemed spontaneous.
In the absence of the qualifying circumstance of treachery, the crime committed is Homicide and not
Murder. The penalty therefor, under Article 249 of the Revised Penal Code, is Reclusion
48 

Temporal, to be imposed in its medium period considering that there is no modifying circumstance to
aggravate or to mitigate criminal liability. Applying the Indeterminate Sentence Law, accused-
49 

appellant shall be entitled to a minimum term, to be taken from the penalty next lower in
degree, Prision Mayor. Thus, accused-appellant shall be sentenced to an indeterminate penalty of
eight (8) years and one (1) day of Prision Mayor, as minimum, to fourteen (14) years, eight (8)
months and one (1) day of Reclusion Temporal, as maximum.

Coming now to the matter of damages, we affirm the award of civil indemnity in the amount of
P50,000.00, pursuant to prevailing jurisprudence. Such award requires no proof other than the
50 

death of the victim. Likewise, the award of moral damages in the amount of P50,000.00 is
51 

consistent with controlling case law taking into consideration the pain and anguish of the victim’s
family brought about by his death. 52

However, the award of P26,000.00 for the Eternal Garden plot, P60,000.00 for the coffin of the victim
and P100,000.00 for the wake and other expenses incurred in connection with the death of the
deceased, amounting to a total of P186,000.00, should be modified. The trial court did not present
any computation to justify such an amount. In fact, other than the bare allegations of the victim’s
widow to this effect, the records are totally bereft of any receipt or voucher to justify the trial court’s
award for burial and other expenses. The rule is that every pecuniary loss must be established by
credible evidence before it may be awarded. Credence can be given only to claims which are duly
53 

supported by receipts or other credible evidence. Thus, the amount of actual damages should
54 

accordingly be reduced to P66,000.00, which is borne out by the evidence. 55

In the same vein, loss of earning capacity cannot be awarded to the victim’s heirs in the absence of
competent proof thereof. While the widow in this case testified on the victim’s income, the same can
56 

no longer serve as basis for lost earnings, in the light of our recent ruling in People v.
Panabang, and reiterated in People v. Cuenca. There we held that indemnification for loss of
57  58 

earning capacity partakes of the nature of actual damages which must be duly proven; and a self-
serving statement, being unreliable, is not enough. For lost income to be recovered, there must be
an unbiased proof of the deceased’s average, not just gross, income.

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Dagupan City,
Branch 44, in Criminal Case No. 96-01443-D is MODIFIED. Accused-appellant Bonnie R. Rabanal is
found GUILTY beyond reasonable doubt of Homicide and is sentenced to suffer an indeterminate
penalty of eight (8) years and one (1) day of Prision Mayor, as minimum, to fourteen (14) years,
eight (8) months and one (1) day of Reclusion Temporal, as maximum. He is ORDERED to pay the
heirs of the victim, Roberto Pascua, the amounts of P50,000.00 as civil indemnity, P50,000.00 as
moral damages and P66,000.00 as burial and other expenses. The award of damages for lost
income is DELETED. The decision under review is AFFIRMED in all other respects.

SO ORDERED.