G.R. No. 151876. June 21, 2005

[G.R. No. 151876.  June 21, 2005]

SUSAN GO and the PEOPLE OF THE PHILIPPINES, petitioners, vs. FERNANDO L. DIMAGIBA, respondent.

D E C I S I O N

PANGANIBAN, J.:

Administrative Circular 12-2000, as clarified by Administrative Circular 13-2001, merely establishes a rule of preference in imposing penalties for violations of Batas Pambansa Blg. 22 (BP 22), the “Bouncing Checks Law.”  When the circumstances of both the offense and the offender indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone -- instead of imprisonment -- is the preferred penalty.  As the Circular requires a review of the factual circumstances of a given case, it applies only to pending or future litigations.  It is not a penal law; hence, it does not have retroactive effect.  Neither may it be used to modify final judgments of conviction.

The Case

Before us is a Petition for Review^[1] under Rule 45 of the Rules of Court, assailing the October 10, 2001^[2] and the October 11, 2001^[3] Orders of the Regional Trial Court (RTC) (Branch 5), Baguio City.^[4] The October 10, 2001 Order released Respondent Fernando L. Dimagiba from confinement and required him to pay a fine of P100,000 in lieu of imprisonment.  The October 11, 2001 Order disposed as follows:

“WHEREFORE, [in] applying the doctrine as held in the above-entitled cases in this case, the instant petition for Habeas Corpus should be, as it is hereby, GRANTED.  The Baguio City Jail Warden is hereby ordered to IMMEDIATELY RELEASE the petitioner from confinement unless he is being held for some other lawful cause other than by virtue of the Sentence Mittimus dated September 28, 2001 issued by CESAR S. VIDUYA, Clerk of Court, MTC 4, Baguio City.  Further, the petitioner is required to pay a fine in the amount of P100,000.00 in lieu of his imprisonment, in addition to the civil aspect of the Joint Judgment rendered by MTC 4 dated July 16, 1999.”^[5]

The Facts

The pertinent facts are not disputed.  Respondent Fernando L. Dimagiba issued to Petitioner Susan Go thirteen (13) checks which, when presented to the drawee bank for encashment or payment on the due dates, were dishonored for the reason “account closed.”^[6] Dimagiba was subsequently prosecuted for 13 counts of violation of BP 22^[7] under separate Complaints filed with the Municipal Trial Court in Cities (MTCC) in Baguio City.^[8] After a joint trial, the MTCC (Branch 4) rendered a Decision on July 16, 1999, convicting the accused in the 13 cases. The dispositive portion reads as follows:

“WHEREFORE, in view of the foregoing disquisition, this Court finds the evidence of the prosecution to have established the guilt of the accused beyond reasonable doubt of the offenses charged and imposes upon the accused the penalty of 3 months imprisonment for each count (13 counts) and to indemnify the offended party the amount of One Million Two Hundred Ninety Five Thousand Pesos (P1,295,000.00) with legal interest per annum commencing from 1996 after the checks were dishonored by reason ‘ACCOUNT CLOSED’ on December 13, 1995, to pay attorney’s fees of P15,000.00 and to pay the costs.”^[9]

The appeal of Dimagiba was raffled to Branch 4 of the RTC in Baguio City.^[10] On May 23, 2000, the RTC denied the appeal and sustained his conviction.^[11] There being no further appeal to the Court of Appeals (CA), the RTC issued on February 1, 2001, a Certificate of Finality of the Decision.^[12]

Thus, on February 14, 2001, the MTCC issued an Order directing the arrest of Dimagiba for the service of his sentence as a result of his conviction.  The trial court also issued a Writ of Execution to enforce his civil liability.^[13]

On February 27, 2001, Dimagiba filed a Motion for Reconsideration of the MTCC Order.  He prayed for the recall of the Order of Arrest and the modification of the final Decision, arguing that the penalty of fine only, instead of imprisonment also, should have been imposed on him.^[14] The arguments raised in that Motion were reiterated in a Motion for the Partial Quashal of the Writ of Execution filed on February 28, 2001.^[15]

In an Order dated August 22, 2001, the MTCC denied the Motion for Reconsideration and directed the issuance of a Warrant of Arrest against Dimagiba.^[16] On September 28, 2001, he was arrested and imprisoned for the service of his sentence.

On October 9, 2001, he filed with the RTC of Baguio City a Petition^[17] for a writ of habeas corpus.  The case was raffled to Branch 5, which scheduled the hearing for October 10, 2001.  Copies of the Order were served on respondent’s counsels and the city warden.^[18]

Ruling of the Regional Trial Court

Right after hearing the case on October 10, 2001, the RTC issued an Order directing the immediate release of Dimagiba from confinement and requiring him to pay a fine of P100,000 in lieu of imprisonment.  However, the civil aspect of the July 16, 1999 MTCC Decision was not touched upon.^[19] A subsequent Order, explaining in greater detail the basis of the grant of the writ of habeas corpus, was issued on October 11, 2001.^[20]

In justifying its modification of the MTCC Decision, the RTC invoked Vaca v. Court of Appeals^[21] and Supreme Court Administrative Circular (SC-AC) No. 12-2000,^[22] which allegedly required the imposition of a fine only instead of imprisonment also for BP 22 violations, if the accused was not a recidivist or a habitual delinquent.  The RTC held that this rule should be retroactively applied in favor of Dimagiba.^[23] It further noted that (1) he was a first-time offender and an employer of at least 200 workers who would be displaced as a result of his imprisonment; and (2) the civil liability had already been satisfied through the levy of his properties.^[24]

On October 22, 2001, Petitioner Go filed a Motion for Reconsideration of the RTC Orders dated October 10 and 11, 2001.^[25] That Motion was denied on January 18, 2002.^[26]

Hence, this Petition filed directly with this Court on pure questions of law.^[27]

The Issues

Petitioner raises the following issues for this Court’s consideration:

“1.       [The RTC] Judge was utterly devoid of jurisdiction in amending a final and conclusive decision of the Municipal Trial Court, Branch 4, dated July 16, 1999, in nullifying the Sentence Mittimus, dated September 28, 2001, issued by x x x [the] Municipal Trial Court, Branch 4, Baguio City, and in ordering the release of [Dimagiba] from confinement in jail for the service of his sentence under the said final and conclusive judgment;

“2.       Assuming only for the sake of argument that habeas corpus is the proper remedy, the Petition for Habeas Corpus is utterly devoid of merit as [Dimagiba was] not entitled to the beneficent policy enunciated in theEduardo Vaca and Rosa Lim cases and reiterated in the Supreme Court Circular No. 12-2000; x x x

“3.       Granting for the sake of argument that [Dimagiba was] entitled to the beneficent policy enunciated in the Eduardo Vaca and Rosa Lim cases and reiterated in the Supreme Court Circular No. 12-2000, the minimum fine that should be imposed on [Dimagiba] is one million and two hundred ninety five thousand pesos (P1,295,000.00) up to double the said amount or (P2,590,000), not just the measly amount of P100,000; and

“4.       [The RTC] judge committed grave abuse of discretion amounting to lack or excess of jurisdiction in hearing and deciding [Dimagiba’s] Petition for Habeas Corpus without notice and without affording procedural due process to the People of the Philippines through the Office of [the] City Prosecutor of Baguio City or the Office of the Solicitor General.”^[28]

In the main, the case revolves around the question of whether the Petition for habeas corpus was validly granted.  Hence, the Court will discuss the four issues as they intertwine with this main question.^[29]

The Court’s Ruling

The Petition is meritorious.

Main Issue:

Propriety of the

Writ of Habeas Corpus

The writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals are deprived of liberty.^[30] It was devised as a speedy and effectual remedy to relieve persons from unlawful restraint; or, more specifically, to obtain immediate relief for those who may have been illegally confined or imprisoned without sufficient cause and thus deliver them from unlawful custody.^[31] It is therefore a writ of inquiry intended to test the circumstances under which a person is detained.^[32]

The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment.^[33] However, as a post-conviction remedy, it may be allowed when, as a consequence of a judicial proceeding, any of the following exceptional circumstances is attendant:  (1) there has been a deprivation of a constitutional right resulting in the restraint of a person; (2) the court had no jurisdiction to impose the sentence; or (3) the imposed penalty has been excessive, thus voiding the sentence as to such excess.^[34]

In the present case, the Petition for a writ of habeas corpus was anchored on the ruling in Vaca and on SC-AC No. 12-2000, which allegedly prescribed the imposition of a fine, not imprisonment, for convictions under BP 22.  Respondent sought the retroactive effect of those rulings, thereby effectively challenging the penalty imposed on him for being excessive.  From his allegations, the Petition appeared sufficient in form to support the issuance of the writ.

However, it appears that respondent has previously sought the modification of his sentence in a Motion for Reconsideration^[35] of the MTCC’s Execution Order and in a Motion for the Partial Quashal of the Writ of Execution.^[36] Both were denied by the MTCC on the ground that it had no power or authority to amend a judgment issued by the RTC.

In his Petition for habeas corpus, respondent raised the same arguments that he had invoked in the said Motions.  We believe that his resort to this extraordinary remedy was a procedural infirmity.  The remedy should have been an appeal of the MTCC Order denying his Motions, in which he should have prayed that the execution of the judgment be stayed.  But he effectively misused the action he had chosen, obviously with the intent of finding a favorable court.  His Petition for a writ of habeas corpus was clearly an attempt to reopen a case that had already become final and executory.  Such an action deplorably amounted to forum shopping.  Respondent should have resorted to the proper, available remedy instead of instituting a different action in another forum.

The Court also finds his arguments for his release insubstantial to support the issuance of the writ of habeas corpus.

Preference in the

Application of Penalties

for Violation of BP 22

The following alternative penalties are imposable under BP 22: (1) imprisonment of not less than 30 days, but not more than one year; (2) a fine of not less or more than double the amount of the check, a fine that shall in no case exceed P200,000; or (3) both such fine and imprisonment, at the discretion of the court.^[37]

SC-AC No. 12-2000, as clarified by SC-AC No. 13-2001,^[38] established a rule of preference in imposing the above penalties.^[39] When the circumstances of the case clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone may be considered as the preferred penalty.^[40] The determination of the circumstances that warrant the imposition of a fine rests upon the trial judge only.^[41] Should the judge deem that imprisonment is appropriate, such penalty may be imposed.^[42]

SC-AC No. 12-2000 did not delete the alternative penalty of imprisonment.  The competence to amend the law belongs to the legislature, not to this Court.^[43]

Inapplicability of

SC-AC No. 12-2000

Petitioners argue that respondent is not entitled to the benevolent policy enunciated in SC-AC No. 12-2000, because he is not a “first time offender.”^[44] This circumstance is, however, not the sole factor in determining whether he deserves the preferred penalty of fine alone.  The penalty to be imposed depends on the peculiar circumstances of each case.^[45] It is the trial court’s discretion to impose any penalty within the confines of the law.  SC-AC No. 13-2001 explains thus:

“x x x.  Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of BP 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty.  Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge.  x x x.

It is, therefore, understood that:

x x x                                         x x x                                  x x x

“2.       The Judges concerned, may in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice;”

The Court notes that the Petition for a writ of habeas corpus relied mainly on the alleged retroactivity of SC-AC No. 12-2000, which supposedly favored BP 22 offenders.^[46] On this point, Dimagiba contended that his imprisonment was violative of his right to equal protection of the laws, since only a fine would be imposed on others similarly situated.^[47]

The rule on retroactivity states that criminal laws may be applied retroactively if favorable to the accused.  This principle, embodied in the Revised Penal Code,^[48] has been expanded in certain instances to cover special laws.^[49]

The issue of retroactivity of SC-AC No. 12-2000 was settled in De Joya v. Jail Warden of Batangas City,^[50] which we quote:

“Petitioner's reliance of our ruling in Ordoñez v. Vinarao that a convicted person is entitled to benefit from the reduction of penalty introduced by the new law, citing People v. Simon, is misplaced.  Thus, her plea that as provided for in Article 22 of the Revised Penal Code, SC Admin. Circular No. 12-2000 as modified by SC Admin. Circular No. 13-2001 should benefit her has no basis.

“First. SC Admin. Circular No. 12-2000 is not a penal law; hence, Article 22 of the Revised Penal Code is not applicable. The circular applies only to those cases pending as of the date of its effectivity and not to cases already terminated by final judgment.

“Second. As explained by the Court in SC Admin. Circular No. 13-2001, SC Admin. Circular No. 12-2000 merely lays down a rule of preference in the application of the penalties for violation of B.P. Blg. 22. It does not amend B.P. Blg. 22, nor defeat the legislative intent behind the law. SC Admin. Circular No. 12-2000 merely urges the courts to take into account not only the purpose of the law but also the circumstances of the accused -- whether he acted in good faith or on a clear mistake of fact without taint of negligence -- and such other circumstance which the trial court or the appellate court believes relevant to the penalty to be imposed.”^[51]

Because the Circular merely lays down a rule of preference, it serves only as a guideline for the trial courts.  Thus, it is addressed to the judges, who are directed to consider the factual circumstances of each case prior to imposing the appropriate penalty.  In other words, the Administrative Circular does not confer any new right in favor of the accused, much less those convicted by final judgment. 

The competence to determine the proper penalty belongs to the court rendering the decision against the accused.^[52] That decision is subject only to appeal on grounds of errors of fact or law, or grave abuse of discretion amounting to lack or excess of jurisdiction.  Another trial court may not encroach upon this authority.  Indeed, SC-AC No. 12-2000 necessarily requires a review of all factual circumstances of each case.  Such a review can no longer be done if the judgment has become final and executory.

In the present case, the MTCC of Baguio City had full knowledge of all relevant circumstances from which respondent’s conviction and sentence were based.  The penalty imposed was well within the confines of the law.  Upon appeal, the conviction was sustained by RTC-Branch 4 of Baguio City.  Eventually, the Decision attained finality.  Hence, RTC-Branch 5 did not have the jurisdiction to modify the lawful judgment in the guise of granting a writ of habeas corpus.

The doctrine of equal protection of laws^[53] does not apply for the same reasons as those on retroactivity.  Foremost of these reasons is that the Circular is not a law that deletes the penalty of imprisonment.  As explained earlier, it is merely a rule of preference as to which penalty should be imposed under the peculiar circumstances of a case.  At any rate, this matter deserves scant consideration, because respondent failed to raise any substantial argument to support his contention.^[54]

Modification of Final

Judgment Not Warranted

The Court is not unmindful of So v. Court of Appeals,^[55] in which the final judgment of conviction for violation of BP 22 was modified by the deletion of the sentence of imprisonment and the imposition of a fine.  That case proceeded from an “Urgent Manifestation of an Extraordinary Supervening Event,”^[56] not from an unmeritorious petition for a writ of habeas corpus, as in the present case.  The Court exercised in that case its authority to suspend or to modify the execution of a final judgment when warranted or made imperative by the higher interest of justice or by supervening events.^[57] The supervening event in that case was the petitioner’s urgent need for coronary rehabilitation for at least one year under the direct supervision of a coronary care therapist; imprisonment would have been equivalent to a death sentence.^[58]

The peculiar circumstances of So do not obtain in the present case.  Respondent’s supposed “unhealthy physical condition due to a triple by-pass operation, and aggravated by hypertension,” cited by the RTC in its October 10, 2001 Order,^[59] is totally bereft of substantial proof.  The Court notes that respondent did not make any such allegation in his Petition for habeas corpus.  Neither did he mention his physical state in his Memorandum and Comment submitted to this Court.

Respondent seeks the retroactive application of SC-AC No. 12-2000 in his favor on the basis alone of the alleged settlement of his civil liability.^[60] Citing Griffith v. Court of Appeals,^[61] he theorizes that answering for a criminal offense is no longer justified after the settlement of the debt. 

Respondent, however, misreads Griffith.  The Court held in that case that convicting the accused who, two years prior to the filing of the BP 22 cases, had already paid his debt (from which the checks originated) was contrary to the basic principles of fairness and justice.^[62] Obviously, that situation is not attendant here. 

The civil liability in the present case was satisfied through the levy and sale of the properties of respondent only after the criminal case had been terminated with his conviction.^[63] Apparently, he had sufficient properties that could have been used to settle his liabilities prior to his conviction.  Indeed, such an early settlement would have been an indication that he was in good faith, a circumstance that could have been favorably considered in determining his appropriate penalty.

At any rate, civil liability differs from criminal liability.^[64] What is punished in the latter is not the failure to pay the obligation, but the issuance of checks that subsequently bounced or were dishonored for insufficiency or lack of funds.^[65] The Court reiterates the reasons why the issuance of worthless checks is criminalized:

“The practice is prohibited by law because of its deleterious effects on public interest. The effects of the increase of worthless checks transcend the private interest of the parties directly involved in the transaction and touches the interest of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation multiplied a thousand-fold can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. The law punishes the act not as an offense against property but an offense against public order.”^[66]

WHEREFORE, the Petition is GRANTED and the assailed Orders NULLIFIED.  Respondent’s Petition for habeas corpus is hereby DENIED.  Let this case be REMANDED to MTCC of Baguio City for the re-arrest of respondent and the completion of his sentence.

No pronouncement as to costs.

SO ORDERED.

Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ., concur.

^[1] Rollo, pp. 4-39.  An RTC judgment may be directly appealed to this Court if the issues raised are purely questions of law.  (§1, Rule 45, Rules of Court)  Petitioner mistakenly impleaded the judge as respondent.  In a petition for review, the lower court is excluded as a respondent. (§4, id.)

^[2] Rollo, pp. 90-91.

^[3] Id., pp. 92-96.

^[4] Presided by Judge Antonio M. Esteves.

^[5] RTC Order, dated October 11, 2001, p. 5; rollo, p. 96.

^[6] Petitioner’s Memorandum, p. 17 (rollo, p. 442); Solicitor General’s Memorandum, p. 2; respondent’s Memorandum, p. 1 (rollo, p. 481).

^[7] “An Act Penalizing the Making or Drawing and Issuance of a Check Without Sufficient Funds or Credit and for Other Purposes,” approved on April 3, 1979.

^[8] Presided by Judge Iluminada Cabato-Cortes.

^[9] MTCC Joint Judgment, dated July 16, 1999, p. 14; rollo, p. 53.

^[10] Presided by Judge Amado S. Caguioa.

^[11] RTC Decision, dated May 23, 2000; rollo, pp. 54-56.

^[12] Certificate of Finality, dated February 1, 2001; rollo, p. 57.

^[13] Annex “D,” Petition; rollo, p. 58.

^[14] Respondent’s Motion for Reconsideration, dated February 27, 2001; rollo, pp. 60-66.

^[15] Respondent’s Motion for Partial Quashal of the Writ of Execution, dated February 28, 2001; rollo, pp. 67-73.

^[16] Rollo, pp. 74-75.

^[17] Rollo, pp. 76-79.  The case was entitled “In re: The Matter of the Petition for Habeas Corpu[s] of Fernando Dimagiba,” with Dimagiba as petitioner and the warden of the Baguio City Jail as respondent.  Evidently, the former erred in titling his Petition.  Governed by Rule 102 of the Rules of Court, it should have properly been referred to as “Petition for the Writ of Habeas Corpus.”

^[18] Rollo, pp. 81-83.

^[19] Assailed Order, dated October 10, 2001; rollo, pp. 90-91.

^[20] Assailed Order, dated October 11, 2001; rollo, pp. 92-96.

^[21] 359 Phil. 187, November 16, 1998.

^[22] Issued on November 21, 2000.

^[23] Assailed Order, dated October 11, 2001, pp. 3-4; rollo, p. 95-96.

^[24] Ibid.

^[25] Petitioner’s Motion for Reconsideration; rollo, pp. 97-106.

^[26] RTC Order, dated January 18, 2002; rollo, p. 125.

^[27] The case was deemed submitted for decision on September 2, 2004, upon this Court’s receipt of the solicitor general’s Memorandum, signed by Assistant Solicitors General Antonio L. Villamor and Rodolfo G. Urbiztondo, and Solicitor Luis F. Simon.  The Office of the Solicitor General, as counsel for the People of the Philippines, was allowed to join as co-petitioner, per this Court’s Resolution dated November 25, 2002 (rollo, p. 137).

The Court received petitioner’s Memorandum, signed by Atty. Ariel Aloysius P. Ingalla, on July 26, 2004.  Respondent’s Memorandum, signed by Atty. Lauro D. Gacayan, was received on August 17, 2004.

^[28] Petitioner’s Memorandum, pp. 21-22; rollo, pp. 446-447.

^[29] The Court disregards the arguments of respondent in his Comment and Memorandum, in which he said that he was innocent of the charges of violating BP 22.  This Petition is not an appeal from his judgment of conviction.

^[30] §1, Rule 102, Rules of Court.

^[31] Velasco v. Court of Appeals, 245 SCRA 677, 679, July 7, 1995.  Also cited in Feria v. Court of Appeals, 382 Phil. 412, 420, February 15, 2000.  See also Villavicencio v. Lukban, 39 Phil. 778, 788, March 25, 1919.

^[32] Velasco v. Court of Appeals, supra.

^[33] §4, Rule 102, Rules of Court.

^[34] De Villa v. The Director, New Bilibid Prisons, GR No. 158802, November 17, 2004; Feria v. Court of Appeals, supra; Andal v. People, 367 Phil. 154, 157, May 26, 1999; Harden v. Director of Prisons, 81 Phil. 741, 746, October 22, 1948.

^[35] Rollo, pp. 60-66.

^[36] Id., pp. 67-73.

^[37] §1, BP 22.

^[38] Issued on February 14, 2001.

^[39] Abarquez v. Court of Appeals, 408 SCRA 500, 511, August 7, 2003; Nagrampa v. People, 435 Phil. 440, 454, August 6, 2002; Tan v. Mendez Jr., 432 Phil. 760, 772, June 6, 2002.

The rationale of this Circular is found in Vaca v. Court of Appeals (supra) and Lim v. People (340 SCRA 497, 504, September 18, 2000).  In these cases, the Court held that it would best serve the ends of criminal justice if, in fixing the penalty to be imposed for violation of BP 22, the same philosophy underlying the Indeterminate Sentence Law is observed.  The Court meant redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness, with due regard to the protection of the social order.

^[40] Administrative Circular 13-2001.  See also Tan v. Mendez, supra, p. 773.

^[41] Ibid.

^[42] Ibid.

^[43] Ibid.  §1, Article VI, Philippine Constitution.

^[44] Petitioner’s Memorandum, pp. 28-29; rollo, pp. 453-454.

^[45] Abarquez v. Court of Appeals; supra, p. 510.

In Vaca, petitioners were first-time offenders.  They were Filipino entrepreneurs who were presumed to contribute to the national economy.  They brought the appeal, mistakenly believing that they had committed no violation of BP 22.  Otherwise, they would have accepted the trial court’s judgment and applied for probation to avoid a prison term.  (Vaca v. Court of Appeals; supra, pp. 195-196).

^[46] Rollo, pp. 76-78.

^[47] Ibid.

^[48] “Art. 22.  Retroactive effect of penal laws. – Penal laws shall have a retroactive insofar as they favor the person guilty of a felony, who is not a habitual criminal, x x x although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.”

^[49] People v. Langit, 392 Phil. 94, 119, August 4, 2000; Gonzales v. Court of Appeals, 343 Phil. 297, 306, August 18, 1997; People v. Ganguso, 320 Phil. 324, 340, November 23, 1995; People v. Simon, 234 SCRA 555, 570, July 29, 1994.

This doctrine follows the rule that the provisions of the Revised Penal Code apply supplementarily to special laws.  Art. 10, Revised Penal Code.

^[50] 417 SCRA 636, December 10, 2003.

^[51] Id., p. 642, per Callejo Sr., J.

^[52] It should be noted that a decision prepared, signed, and promulgated by a judge who has not fully or partly heard the case is valid.  It is sufficient that the judge, in deciding the case, completely relied on the records before him.  Villanueva v. Estenzo, 64 SCRA 407, 413-414, June 27, 1975.

^[53] The Constitutional guarantee of equal protection of laws means that no person or class of persons shall be deprived of the same protection of the laws enjoyed by other persons or other classes in the same place and in like circumstances.  Tolentino v. Board of Accountancy, 90 Phil. 83, 90, September 28, 1951.

^[54] Dimagiba merely noted that the equal-protection clause of the Constitution required the retroactive application of SC-AC No. 12-2000.  Respondent’s Memorandum, p. 15; rollo, p. 495.

^[55] 436 Phil. 683, 688, August 29, 2002.

^[56] Id., p. 685.

^[57] Id., p. 688.

^[58] Ibid.

^[59] RTC Order, dated October 10, 2001, p. 1; rollo, p. 90.

^[60] Respondent’s Memorandum, p. 18; rollo, p. 498.

^[61] 428 Phil. 878, March 12, 2002.

^[62] Id., p. 892.

^[63] The debt was allegedly satisfied through the levy and sale of respondent’s Toyota Land Cruiser and two parcels of land.  Respondent’s Memorandum, p. 18; rollo, p. 498.

^[64] See Rico v. People, 392 SCRA 61, 74, November 18, 2002; Caras v. Court of Appeals, 418 Phil. 655, 668, October 2, 2001.

^[65] See Seares v. Salazar, 345 SCRA 308, 313, November 22, 2000.

^[66] De Joya v. Jail Warden of Batangas City, supra, p. 644 (citing Lozano v. Martinez, 230 Phil. 406, 424, December 18, 1986).

G.R. No. 127663. March 11, 1999

[G.R. No. 127663.  March 11, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO VALDEZ, accused-appellant.

D E C I S I O N

MELO, J.:

Accused-appellant Rolando Valdez seeks reversal of the judgment of conviction promulgated by Branch 45 of the Regional Trial Court of the First Judicial Region stationed in Urdaneta, Pangasinan, on October 24, 1996 sentencing him to death for the complex crime of Multiple Murder with double Frustrated Murder, and likewise separately sentencing him to suffer the prison term of reclusion perpetua for the crime of Illegal Possession of Firearms and Ammunitions (Presidential Decree No. 1866).

The information against accused-appellant, Bernard Castro, and one John Doe for the complex crime of Multiple Murder with Double Frustrated Murder charged:

That on or about 8:30 o’clock in the evening of September 17, 1995, at Sitio Cabaoangan, barangay Nalsian, municipality of Manaoag, province of Pangasinan, and within and jurisdiction of this Honorable Court, the said accused conspiring, confederating and mutually helping one another with intent to kill, and each armed with caliber .30 carbines did then and there wilfully, unlawfully and feloniously, with evident premeditation, abuse of superior strength and treachery, simultaneously attacked and fired their caliber .30 carbines at Ramon Garcia, Jr., Jean Marie Garcia, Willy Acosta, Sandra Montano, William Montano and Randy Tibule while they were on board a tricycle, on their way to a dance party, hitting them in the different parts of their bodies which caused the instantaneous death of Ramon Garcia, Jr., Jean Marie Garcia, Willy Acosta and Sandra Montano, to the damage and prejudice of their respective heirs, and inflicting fatal injuries to William Montano and Randy Tibule, in the different parts of their bodies, having thus performed all the acts which would have produced the crime of murder with respect to both but which did not by reason of causes independent of the will of the accused, namely, the able and timely medical assistance given the said victims William Montano and Randy Tibule, which prevented their death.

Contrary to Article 248 in Relation to Article 48 and Article 6 of the RPC.

(pp. 1-2, Record of Crim. Case No. U-8747)

The Information for Illegal Possession of Firearms and Ammunitions pertinently averred:

That on or about 8:30 o’clock in the evening of September 17, 1995 at Sitio Cabaoangan, Barangay Nalsian, Municipality of Manaoag, province of Pangasinan and within and jurisdiction of this Honorable Court, the said accused, did then and there wilfully, unlawfully and feloniously, have in his possession, custody and control, a firearm, to wit:  Caliber .30 carbine without first having secured the proper license thereof from the authorities and which he used in committing the offense of multiple murder and double frustrated murder.

Contrary to Presidential Decree 1866.

(p. 1, Record of Crim. Case No. U-8749)

The inculpatory facts adduced by the prosecution during trial are succinctly summarized in the People’s brief as follows:

On September 17, 1995, at around 8:00 in the evening, William Montano (16 years old), Randy Tibule (17 years old), Jean Marie Garcia, Willie Acosta, Sandra Montano and Ramon Garcia, Jr., were at the house of Randy Tibule in Manaoag, Pangasinan.  They were discussing how to go to the wedding party of Jean Marie’s cousin in Sitio Cabaoangan (TSN June 11, 1996, pp. 7-8; June 18, 1996, pp. 23-24).

After discussion, they rode in the tricycle driven by Ramon Garcia going to Cabaoangan.  Behind Garcia were Tibule and Willie.  Jean was seated inside the side car with Sandra and William Montano (TSN June 11, 1996, pp. 7-11; TSN June 18,1996, pp. 23-25).

After making a turn along the barangay road leading to Sitio Cabaoangan, they met appellant Rolando Valdez and his companions who were armed with guns.  The tricycle’s headlight flashed on their faces.  Without warning, they pointed their guns and fired at Montano’s group.  Thereafter, after uttering the words, “nataydan, mapan tayon” (They are already dead.  Let us go), Valdez and companions left (TSN June 11,1996, pp. 11-14).

The shooting incident left Ramon Garcia, Jean Marie Garcia, Sandra Montano and Willie Acosta dead (TSN June 11, 1996, pp. 14-16). They sustained the following injuries:

Jean Marie Garcia:

- gunshot wound .5 cm. in diameter, 1 inch lateral of the nipple right through and through trajecting the middle lobe of the lungs, rt ventricle of the heart, middle lobe of the lung, left with point of exit 1 inch in diameter 1 inch lateral of the nipple, left.

(Exhibit B)

Ramon Garcia:

- gunshot wound, .5 cm. diameter point of entrance ear canal thru and thru trajecting the skull brain substance with point of exit temporal area right.

- Another gunshot wound .5 cm. in diameter point of entrance anterior axilliary line left at the lable nipple trajecting the lung (left) heart ventricle and lung (right) with point of exit 1 cm. in diameter, 1 inch lateral the nipple right.

(Exhibit C)

Sandra Montano:

- gunshot wound .6 cm. in diameter, point of entrance at the temporal area left, penetrating the skin, skull minigas, brain substance (right) (tempral regis) where the slug lodge.

(Exhibit D)

Willie Acosta:

- gunshot wound, .5 cm. in diameter below coastal arch point of entrance trajecting the upper 3^rd of the stomach thru and thru trajecting the upper third of the stomach of thoracic vein with the point of exit 1 cm. in diameter at the level of the 7^th thorasic vertebrae.

(Exhibit E)

On the other hand, William Montano and Randy Tibule survived the attack.  They suffered serious gunshot injuries that could have caused their death were it not for the timely medical attention given them (TSN July 3, 1996, p. 6).  Montano sustained several gunshot wounds on the left arm, two on the left upper back, another on the left shoulder and middle right finger (TSN June 25, 1996, p. 608).  Tibule sustained two gunshot wounds, one at the fifth upper quadrant (stomach) and the other at the left periumbelical (TSN July 3, 1996, pp. 7-8).

(pp. 215-219, Rollo.)

In its decision dated October 24, 1996, the trial court rendered a judgment of conviction in the two cases, finding and disposing:

IN CRIMINAL CASE NO. U-8747: --

the accused ROLANDO VALDEZ y LIPURDA, GUILTY beyond reasonable doubt of the crime of MULTIPLE MURDER WITH DOUBLE FRUSTRATED MURDER defined and penalized under Republic Act No. 7659 otherwise known as the Heinous Crime Law, the offense having been a complex crime the penalty of which is in the maximum, and with the attendant aggravating circumstances of evident premeditation and abuse of superior strength, hereby sentences him the ultimum supplicum of DEATH to be executed pursuant to Republic Act No. 8177 known as the Lethal Injection Law, to pay the heirs of the deceased RAMON GARCIA, JR., WILLIE ACOSTA, JEMARIE GARCIA and SANDRA MONTANO and RANDY TIBULE, as follows:

1).     To the heirs of the deceased Ramon Garcia, jr.:

a)           P 50,000 as indemnity

b)          P 52,116.00 as actual damages

c)           P 500,000.00 as moral damages

2).     To the heirs of the deceased WILLIE ACOSTA”

a)           P 50,000 as indemnity

b)          P 26,358.00 as actual damages

c)           P 500,000.00 as moral damages

3)      To the heirs of the deceased JEMARIE GARCIA:

a)           P 50,000 as indemnity

b)          P 500,000.00 as moral damages

4)      To the heirs of the deceased Sandra Montano:

a)           P 50,000 as indemnity

b)          P 48,269.80 as actual damages

c)           P 500,000.00 as moral damages

5)      To the victim WILLIAM MONTANO:

a)           P 39,133.92 as actual damages

b)          P 100,000.00 as moral damages

6)      To the victim RANDY TIBULE:

a)           P 36,233.65 as actual damages

b)          P 100,000.00 as moral damages

and to pay the costs.

WITH RESPECT TO CRIMINAL CASE NO. U-8749: --

the accused ROLANDO VALDEZ y LIPURDA GUILTY beyond reasonable doubt of the crime of ILLEGAL POSSESSION OF FIREARM AND AMMUNITIONS (Presidential Decree No. 1866) and hereby sentences him to suffer imprisonment of RECLUSION PERPETUA and to pay the costs.

Finally, it is said:  “Dura lex, sed lex,” translated as:  “The law is harsh, but that is the law!”

SO ORDERED.

(pp. 180-181, Rollo.)

Hence, the instant review, with accused-appellant anchoring his plea for reversal on the following assigned errors:

I.   THE TRIAL COURT ERRED FAILING TO CONSIDER THE MATERIAL, SUBSTANTIAL, IMPORTANT AND SIGNIFICANT, DISCREPANCIES IN THE AFFIDAVITS OF PROSECUTION WITNESSES AND THEIR TESTIMONIES IN COURT;

II. THE TRIAL COURT ERRED IN UPHOLDING THE RECANTATIONS OF PROSECUTION WITNESSES;

III. THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE SERIOUS DOUBTS ON THE IDENTITY OF ACCUSED, ROLANDO VALDEZ AS THE GUNMAN;

IV. THE TRIAL COURT ERRED IN FAILING TO CONSIDER MOTIVE ON THE PART OF BERNARDO CASTRO TO FIRE AT, AS HE ACTUALLY FIRED AT THE OCCUPANTS OF MOTORIZED TRICYCLE;

V.  THE TRIAL COURT ERRED IN FAILING TO APPRECIATE AGAINST THE PROSECUTION ITS DELIBERATE FAILURE TO PRESENT THE POLICE INVESTIGATORS WHO INVESTIGATED THE INCIDENT AND IT WAS THE DEFENSE WHICH PRESENTED SAID POLICE INVESTIGATORS;

VI. THE TRIAL COURT ERRED IN DECLARING THAT ACCUSED ROLANDO VALDEZ DID NOT DENY THE ACCUSATION AGAINST HIM FOR VIOLATION OF P.D. 1866 BECAUSE HE DID NOT ALLEGEDLY TOUCHED IT IN HIS MEMORANDUM.

(pp. 106-107, Rollo)

After a painstaking review of the record and a deliberate consideration of the arguments of accused-appellant, the Court does not find enough basis to reverse.

Accused-appellant claims that the trial court erred in failing to consider what he says are material, substantial, important and significant discrepancies between the affidavits of prosecution witnesses and their testimonies in court.  Accused-appellant points to the Statement of William Montano, taken by SPO1 Mario Suratos on September 20, 1995 (Exhibit 1: p. 238, Record), and the Statement taken on September 24, 1995 (Exhibit 4: p. 291, Record), both in Villaflor Hospital, Dagupan City where William Montano specifically named Bernard Castro as the person who flagged down the motorized tricycle he and the other victims were riding.  This, he claims, is inconsistent with his testimony during the trial where he stated:

ATTY. RANCHEZ:

Q.    Now, were you able to reach Sitio Cabauangan, Nalsiam, Manaoag, Pangasinan?

A.  No, sir.

Q.    Why?

A.   When we were entering the road at Sitio Cabauangan at around ten to fifteen meters, somebody plugged (sic) down the tricycle, sir.

Q.    And what happened next after somebody plugged (sic) down your tricycle?

A.   Somebody standing was lighted by the headlight of our motorcycle, sir.

Q.    Now, what happened next, if any?

A.   The one who was standing and was lighted with the headlight was immediately recognized by me, sir.

Q    Who was that person whom you saw and you immediately recognized?

A.   That one, sir.

ACTG. INTERPRETER:

Witness pointing to a person wearing white t-shirt seated at the bench for the accused, and when asked his name, he gave his name as Rolando Valdez.

(pp. 11-12, tsn, June 11, 1996)

We are not persuaded.

In his Statements dated September 20, 1995 (Exhibit 1) and September 24, 1995 (Exhibit 4), William Montano pointed to Bernard Castro as the person who flagged down the motorized tricycle ridden by the victims. On November 8, 1995, William and his co-victim/survivor Randy Tibule executed a “Pinagsamang Salaysay sa Pag-uurong ng Demanda” where they disclaimed having seen Bernard Castro at the scene of the crime.  They declared that after a more thorough consideration of what transpired, they have realized that the filing of the complaint against Bernard Castro was a mistake and the result of misunderstanding or misapprehension of what actually happened.  In his testimony in court, William, however, identified accused-appellant as the person illuminated by the headlight of the tricycle, for which reason William readily recognized him.  We, therefore, find nothing inconsistent between his declarations during the investigation and his testimony in court.  The lack of precision with which he distinguished between the person who flagged down the tricycle and the other person who he recognized because of the headlight of the tricycle cannot be considered as inconsistency at all.  The same holds true with claimed discrepancies between the statements of Randy Tibule during the investigation and his testimony in court.

Accused-appellant stubbornly insists that following the withdrawal or retraction of the accusation of several witnesses against Bernard Castro, these same witnesses’ accusation against accused-appellant becomes doubtful.

We are not convinced.

In all the references by accused-appellant in pages 10-12 of his brief to the sworn declarations of prosecution witnesses made during the investigation of the case, Bernard Castro may have indeed been identified and named as one of the gunmen.  It may readily be noted in these very same references, however, that all these prosecution witnesses referred to two other companions, then unidentified, of Bernard Castro.  Even in the Joint Affidavit (Exhibit “7”) referred to in page 11 of the brief, the police investigators categorically referred to “Bernard Castro y Nazareno, alias Toti as one of the suspects or assailants involved in the shooting incident” (p. 112, Rollo).  The logical conclusion that may be drawn therefrom is that there is at least one other assailant in addition to Bernard Castro, and as it developed, accused-appellant was subsequently and positively named as such. Withal, we cannot subscribe to accused-appellant’s ratiocination that if the witnesses pointed to Bernard Castro as one of the perpetrators of the crime, then it follows that accused-appellant cannot be one other and additional perpetrator anymore.  Accused-appellant’s reasoning on this point is absolutely flawed.  It is totally unacceptable.

Accused-appellant likewise seeks shelter in the mysterious withdrawal of the victims’ charges against Bernard Castro.  He insinuates that such recantation should not have been given any consideration.  But, this is water under the bridge.  Anyway, even in the remotest possibility that the retraction of the accusation against Bernard Castro may be reversed, it does not get accused-appellant off the hook.  Considering that accused-appellant had himself been positively identified, together with Bernard Castro, as one of the other perpetrators of the crime, his conviction may still stand independently and regardless of whether or not Castro is indicted or remains unprosecuted.

Accused-appellant further argues that it is not he but Castro who had the motive to shoot and fire at the occupants of the motorized tricycle, mistaking one of the occupants thereof for Isidro Capistrano, Castro’s former classmate and with whom he earlier had an altercation.  It is very clear in his brief, however, that accused-appellant predicates this argument on the mistaken premise that he was not positively identified in the case at bar although he admits that it is established that he was at the scene of the crime (p. 114, Rollo).  This argument will not hold simply because it is settled that accused-appellant had been positively identified by eyewitnesses and victims William Montano and Randy Tibule.  It is basic and fundamental rule that proof of motive is necessary for conviction only when there is doubt as to the identity of the accused, not when accused has been positively identified as in the present case (People vs. Caggaunan, 94 Phil. 118 [1953]; People vs. Realon, 99 SCRA 422 [1980]; People vs. Pano, 257 SCRA 274 [1996]).  Besides, it is also to be noted that lack of motive for committing the crime does not preclude conviction, considering that, nowadays, it is a matter of judicial knowledge that persons have killed or committed serious offense for no reason at all (People vs. Cabodoc,263 SCRA 187 [1996]).

Accused-appellant further contends that the prosecution’s deliberate and intentional failure to present the investigating police officers and their Joint Affidavit (Exhibit “7”) constitutes culpable suppression of evidence which, if duly taken into account, will merit his acquittal.

The argument is puerile, simply because the defense itself was able to present the police officers, and exhibit “7” (p. 116, Rollo).  It is to be further noted that as earlier pointed out, the declaration of SPO1 Suratos and SPO1 Carbonel did not categorically rule out the possibility of convicting other persons as co-principals of Castro.  On the contrary, it is clear from such affidavit that there was more than just one perpetrator of the crime. It even confirms and corroborates the eyewitness accounts of William Montano and Randy Tibule pointing to accused-appellant as one of the other companions of Castro.

After meticulously and carefully going through each and every piece of evidence on record, the Court finds no reason to depart from the trial court’s accord of credence to the eyewitness accounts of William Montano and Randy Tibule who positively identified accused-appellant as one of the persons who shot and fired at them and their companions that fateful night.  We agree with the trial court that the evidence points beyond reasonable  doubt that accused-appellant was one of those principally responsible for the deaths of the four victims in this case and the wounding of two others.  There is also sufficient evidence that the aggravating circumstance of treachery attended the killings, thus, qualifying the same to murder.

Under paragraph 16, Article 14 of the Revised Penal Code, the qualifying circumstance of treachery is present when the offender employs means, methods, or forms in the execution of the crime which tend directly and especially to ensure its execution without risk to himself arising from any defensive or retaliatory act which the victim might make (People vs. Santos, 270 SCRA 650 [1997]).  The settled rule is that treachery can exist even if the attack is frontal if it is sudden and unexpected, giving the victim no opportunity to repel it or depend himself against such attack.  What is decisive is that the execution of the attack, without slightest provocation from the victim who is unarmed, made it impossible for the victim to defend himself or to retaliate (People vs. Javier, 269 SCRA 181 [1997]).

The trial court ruled that evident premeditation is likewise present.  After reviewing the evidence, however, we do not find any showing of evident premeditation on the part of accused-appellant.  While there may be testimonial evidence pointing to an altercation between Bernard Castro and a certain Capistrano, it does sufficiently prove the attendance of the aggravating circumstance of evident premeditation.  It is not enough that evident premeditation is suspected or surmised, but criminal intent must be evidenced by notorious outward acts evidencing determination to commit the crime.  In order to be considered an aggravation of the offense, the circumstance must not merely be “premeditation”; it must be “evident premeditation” (People vs. Torejas, 43 SCRA 158 [1972]).

To establish the existence of evident premeditation, the following have to be prove:  (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the offender had clung to his determination; and (3) sufficient lapse of time between the determination and the execution to allow the offender to reflect on the consequences of his act (People vs. Juan, 254 SCRA 478 [1996]).

Establishing a basis or motive for the commission of the crime does not constitute sufficient ground to consider the existence of evident premeditation.  At best, it may indicate the time when the offenders determined to commit the crime (the first element).  Their act of arming themselves with caliber .30 carbines and thereafter waiting for their supposed victims at ambush positions may have also indicated that they clung to their determination to commit the crime (the second element).  More important that these two elements is the proof that a sufficient period of time had lapsed between the outward act evidencing intent and actual commission of the offense (the third element).  There must have been enough opportunity for the initial impulse to subside.  This element is indispensable for circumstance of evident premeditation to aggravate the crime.  In People vs. Canial, 46 SCRA 134 [1972], this Court reiterates:

In other words, this circumstance can be taken into account only when there had been a cold and deep meditation, and a tenacious persistence in the accomplishment of the criminal act.  There must be ‘an opportunity to coolly and serenely think and deliberate on the meaning and the consequences of what they had planned to do, an interval long enough for the conscience and better judgment to overcome the evil desire and scheme….

(p. 649)

As early as in People vs. Durante, 53 Phil. 363 [1929], the Court had stressed the importance of sufficient time between the criminal act and the resolution to carry out the criminal intent, affording such opportunity for cool thought and reflection to arrive at a calm judgment.  Obviously, this element is wanting in the case at bar.  Right after the supposed heated argument between Bernard Castro and Capistrano, Castro and company went home to get the firearms and not long thereafter mounted the assault. There was no chance for the anger to subside.  The culprits in the case at bar had no opportunity for cool thought and reflection to arrive at a calm judgment.

The other aggravating circumstance considered by the trial court is that of abuse of superior strength.  This contravenes the very basic and elementary doctrine in our jurisdiction that the aggravating circumstance of abuse of superior strength is absorbed in treachery (People vs. Mobe, 81 Phil. 58 [1948]; People vs. Nierra, 96 SCRA 1 [1980]; People vs. Torrefiel, 256 SCRA 369 [1996]).

Notwithstanding the absence of any aggravating circumstances, if we were to uphold the trial courts’ premises on the complex nature of the crime committed, the death sentence, being the maximum penalty for murder, would still have been the imposable penalty under Article 48 of the Revised Penal Code.  The Court however, finds compelling reasons to reduce the sentence from one death penalty (for the complex crime of multiple murder with double frustrated murder) and one reclusion perpetua (for the complex crime of illegal possession of firearms and ammunitions) to four counts of reclusion perpetua (for 4 murders) and two indeterminate sentences of prision mayor to reclusion temporal (for the 2 frustrated murders).

The recommendation of the Solicitor General in the People’s brief that accused-appellant should instead be convicted of four counts of murder and two counts of frustrated murder is well taken.

The trial court erred when it allowed itself to be carried away by the erroneous Information filed by the Office of the Provincial Prosecutor of Pangasinan charging the complex crime of multiple murder and double frustrated murder (p. 1, Record: Crim. Case No. U-8747).  It may be noted that in his Resolution dated September 26, 1995, the investigating municipal trial court judge of Manaoag, Pangasinan, found a prima facie case for four separate counts of murder (pp. 101- 102, Ibid.)  Too, the same investigating judge in his Resolution dated October 31, 1995 found a prima facie case for two counts of frustrated murder (pp. 43-44, Ibid.).  It was upon reinvestigation by the Office of the Provincial Prosecutor of Pangasinan that a case for the complex crime of murder with double frustrated murder was instead filed per its Joint Resolution dated November 17, 1995 (pp. 4-6, Ibid.).

The concept of a complex crime is defined in Article 48 of the Revised Penal Code, to wit:

ART. 48.  Penalty for complex crimes – When a single act constitutes two or more grave or less grave felonies or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. (As amended by Act No. 4000.)

The case at bar does not fall under any of the two instances defined above.  The Office of the Provincial Prosecutor of Pangasinan erroneously considered the case as falling under the first.  It is clear from the evidence on record, however, that the four crimes of murder resulted not from a single act but from several individual and distinct acts.  For one thing, the evidence indicates that there was more than one gunman involved, and the act of each gunman is distinct from that of the other.  It cannot be said therefore, that there is but a single act of firing a single firearm.  There were also several empty bullet shells recovered from the scene of the crime. This confirms the fact that several shots were fired.  Furthermore, considering the relative positions of the gunmen and their victims, some of whom were riding the motorized tricycle itself while the others were seated inside the sidecar thereof, it was absolutely impossible for the four victims to have been hit and killed by a single bullet.  Each act by each gunman pulling the trigger of their respective firearms, aiming each particular moment at different persons constitute distinct and individual acts which cannot give rise to the complex crime of multiple murder.  We therefore rule that accused-appellant is guilty, not of a complex crime of multiple murder, but of four counts of murder for the death of the four victims in this case.  In the same manner, accused-appellant is likewise held guilty for two counts of frustrated murder.

Article 248 of the Revised Penal Code, as amended, provides the penalty of reclusion perpetua to death for the crime of murder.  Without any mitigating or aggravating circumstance attendant in the commission of the crime, the medium penalty is the lower indivisible penalty or reclusion perpetua.  In the case at bar, accused-appellant, being guilty of four separate counts of murder, the proper penalty should be four sentences of reclusion perpetua.  In addition, he being guilty of two counts of frustrated murder, accused-appellant must be meted out an indeterminate sentence ranging from a minimum of 6 years and 1 day of prision mayor to a maximum of 12 years and 1 day of reclusion temporal for each offense.

Now, to the matter of accused-appellant’s conviction for illegal possession of unlicensed firearm under Presidential Decree No. 1866.  It was recently held in the case entitled People vs. Molina (G.R.No. 115835-36, July 22, 1998), and reiterated in People vs. Feloteo (G.R. No. 124212, September 17, 1998), that there can be no separate conviction of the crime of illegal possession of firearms under Presidential Decree No. 1866 in view of the amendments introduced by Republic Act No. 8294.

Instead, illegal possession of firearms is merely to be taken as an aggravating circumstance per Section 1 of Republic Act No. 8294, which in part, provides:

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

Republic Act No. 8294 took effect on July 6, 1997, fifteen days after its publication on June 21, 1997.  The crimes involved in the case at bar were committed on September 17, 1995.  As in the case of any penal law, the provisions of Republic Act No. 8294 will generally have prospective application.  In cases, however, where the new law will be advantageous to the accused, the law may be given retroactive application (Article 22, Revised Penal Code).  Insofar as it will spare accused-appellant in the case at bar from a separate conviction for the crime of illegal possession of firearms, Republic Act No. 8294 may be given retroactive application in Criminal Case No. U-8749 (for Illegal Possession of Firearm) subject of this present review.

As a word of caution, however, the dismissal of the present case for illegal possession of firearm should not be misinterpreted as meaning that there can no longer be any prosecution for the crime of illegal possession of firearm.  In general, all pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No. 8294 are involved (murder or homicide under Section 1, and rebellion, insurrection, sedition or attempted coup d’etat under Section 3).

However, the use of an unlicensed firearm in the case at bar cannot be considered as a special aggravating circumstance in Criminal Case No. U-8747 (for Complex Crime of Multiple Murder), also under review herein, because it will unduly raise the penalty for the four counts of murder from four reclusion perpetua to that of four-fold death.  Insofar as this particular provision of Republic Act No. 8294 is not beneficial to accused-appellant because it unduly aggravates the crime, this new law will not be given retroactive application, lest it might acquire the character of an ex-post facto law.

WHEREFORE, premises considered, the decision with respect to Criminal Case No. U-8747 is hereby MODIFIED.  Accused-appellant is found guilty beyond reasonable doubt of four counts of murder and hereby sentenced to suffer the penalty of four sentences of reclusion perpetua.  He is also found guilty beyond reasonable doubt of two counts of frustrated murder and hereby meted two indeterminate sentences, each, ranging from six (6) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum.  The appealed judgment relating to the civil liabilities of accused-appellant towards the six victims is AFFIRMED.

Criminal Case No. U-8749 involving Presidential Decree No. 1866 is hereby dismissed.

No special pronouncement is made as to costs.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Puno, Vitug, Kapunan, Quisumbing, Puri