G.R. No.

230356, September 18, 2019

PEOPLE OF THE PHILIPPINES, APPELLEE, v. ERIC VARGAS Y
JAGUARIN AND GINA BAGACINA, ACCUSED, ERIC VARGAS Y
JAGUARIN, ACCUSED-APPELLANT.
DECISION
CARPIO, ACTING C.J.:
The Case

On appeal is the 15 November 2016 Decision1 of the Court of Appeals (CA) in

CA-G.R. CR-HC No. 07331, which affirmed with modification the
Judgment2 dated 5 February 2015 of the Regional Trial Court (RTC) of Iriga
City, Branch 60, in Criminal Case No. IR-9351, finding appellant Eric
Vargas y Jaguarin (Vargas) guilty beyond reasonable doubt of the crime of
Murder as defined and penalized under Article 248 of the Revised Penal Code
(RPC).
The Facts

On 2 August 2010, Vargas and a certain "Jane Doe" were charged as follows:
That on or about the 9th day of July 2010 at around 8:30 in the evening, in Zone
3, Barangay San Jose Pangaraon, Nabua, Camarines Sur, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, with intent to
kill, with treachery, evident premeditation employing means to insure or afford
impunity, did then and there willfully, unlawfully and feloniously attack,
assault and shot Miguel Belen y Abala, with the use of unlicensed Caliber 45,
hitting him on the different parts of his body, thus, inflicting mortal wounds,
which was the proximate cause of his death, to the damage and prejudice of
the heirs of the victim in such amount that may be proven in Court.

CONTRARY TO LAW.3
On 12 August 2010, an Amended Information was filed to substitute "Jane
Doe" with Gina Bagacina (Bagacina). A warrant of arrest was issued against
Bagacina on 13 August 2010, but to this date, she remains at large. Upon
arraignment, Vargas entered a plea of not guilty.
The facts, as culled from the records, are as follows:

On or about 8:30 in the evening of 9 July 2010, Miguel A. Belen (Belen), a

volunteer field reporter of Radio Station DWEB was riding home aboard his
motorcycle along the barangay road in Zone 3, Barangay San Jose Pangaraon,
Nabua, Camarines Sur, when he was shot by a woman who was riding a black
motorcycle driven by a man.

At around 8:55 of the same evening, the Nabua Municipal Police Station
received a phone call from a concerned citizen informing them that a shooting
incident happened. Police officers were immediately dispatched and upon
cursory investigation of the scene, it was found that at around 8:30 in the
evening, Belen was riding his red motorcycle when he was shot several times
by an unidentified gunman. Belen was rushed to the Doña Josefa Hospital in
Iriga City for treatment.

On 10 July 2010, SPO2 Romeo Benito Apolinar B. Hugo (SPO2 Hugo), Chief
Investigator of. the Nabua Municipal Police Station, was directed to conduct
an investigation at the Dona Josefa Hospital where Belen was confined.
However, SPO2 Hugo found Belen to be physically indisposed for verbal
communication, given that he was then being treated with his mortal wounds
and was intubated due to damage to his lungs.

On 13 July 2010, SPO2 Hugo returned to the hospital with SPO3 Henry Dino
(SPO3 Dino), who brought two volumes of the rogue gallery of Iriga City for
possible identification of the victim's assailants. On this day, Belen appeared
to be aware and in full possession of his mental faculties but remained unable
to engage in verbal communication due to his injuries. As Belen's wife and
daughter were communicating with Belen through writing, SPO2 Hugo
explained to his wife that he would be propounding questions to Belen and then
he would annotate his response based on the hand or head gestures made by
Belen. Congressman Salvio Fortuno, who belonged to the same political party
as the victim, was also there to aid with the questioning.

SPO2 Hugo asked several questions and the victim's actual method of response
- through nodding or shaking his head or other hand gestures - was annotated
in the sworn statement that was later on prepared to reflect his testimony.
Belen was able to identify Vargas as the driver of the motorcycle after being
shown the second volume of the rogue gallery brought by SPO3 Dino. While
SPO3 Dino was flipping the pages, Belen gestured and pointed to Vargas, and
motioned that Vargas was the driver of the motorcycle in the shooting incident.
As for the actual shooter, Belen confirmed that his assailant was a woman -
nodding his head yes when asked if the shooter was a woman - and Belen was
able to describe her general description by checking the characteristics written
down by SPO2 Hugo in a piece of paper. Belen also wrote the woman's height
as 5'2" in the same piece of paper after much visible effort.

The transcription of the interview was confirmed by Belen, to whom it was

read before he affixed his thumbmark thereto. It was also witnessed by his
wife, who confirmed that Belen was giving his assent thereto, and later on
signified that she witnessed the same by affixing her signature on the same
document. Belen's affidavit was certified by Assistant Provincial Prosecutor
Antonio V. Ramos, after personally confirming with the victim the veracity of
the contents of the same. This Sworn Statement was later offered as evidence
during the trial.

From the confinement until 21 July 2010, Dr. Godofredo Belmonte, Belen's
attending physician, noted that Belen's condition was improving. However, on
21 July 2010, Belen suffered considerable physical deterioration, requiring
further surgery to be conducted. On 29 July 2010, Belen succumbed to his
injuries and passed away.

Dr. James Belgira (Dr. Belgira), the medico-legal officer of the PNP, examined
Belen post-mortem and in his medico-legal report, found that Belen suffered
from significant gunshot wounds, some of which were found to have entry
points at his back, probably shot while Belen was lying on the ground, and
were sustained through intermittent - rather than successive -gunshots. Dr.
Belgira opined that, given the location of the shots and the position of the
victim as he was being shot, there was manifest intent to kill and that
treachery attended the shooting.

For his defense, Vargas denied the charge against him and interposed alibi as
his defense. He alleged that it was impossible for him to be at the scene of the
crime as he has never been to Nabua, Camarines Sur in all his life and that at
the time of the incident, he was having a drinking session with his uncle
Arnulfo Abinal in San Nicolas, Iriga City, not far from the game fowl farm
where he works. They were later joined by Jeffrey Manaog and Sheila
Castanares. Vargas further alleged that he woke up at about 5:00 a.m. the
following day and reported for work at the chicken farm.
The Ruling of the RTC

In a Judgment dated 5 February 2015, the RTC found Vargas guilty of the
crime of Murder, penalized under Article 248 of the RPC, to wit:
WHEREFORE, finding the accused Eric J. Vargas GUILTY beyond reasonable
doubt of the crime of Murder defined and penalized under Article 248 of the
Revised Penal Code, he is hereby sentenced to suffer the penalty of Reclusion
Perpetua.

Death of the victim having occurred due to the crime, Maryjane A. Belen, the
widow of the victim is entitled to moral damages of PhP 50,000 and PhP
100,000.00 in exemplary damages.

There being no receipts presented as to the actual expenses incurred by the

family of the victim, no actual or compensatory damages can be awarded.
However, jurisprudence allows the award of temperate damages considering
that, as records show, the victim underwent medical treatment before his
demise. For this, the court awards the widow of the victim the amount of
PhP75,000.00 as temperate damages.

All monetary awards shall earn an interest of six percent (6%) per annum from
the finality of judgment until fully paid.

Costs against the accused.

SO ORDERED.4
The RTC found that the prosecution was able to clearly establish that Belen
was shot several times, and despite the medical attention received, he
nonetheless died. The RTC also found that the killing of Belen was attended
by the qualifying circumstances of treachery and evident premeditation, and
thus the crime committed was murder. Moreover, the RTC found that Belen,
through his sworn statement, positively identified Vargas as the driver of the
motorcycle of the shooting incident, and that Belen's statement against his
assailant, while not a dying declaration, was credible and spontaneous, and
was admissible as part of res gestae.
The Ruling of the CA

In a Decision dated 15 November 2016, the CA affirmed, with modification, the

Decision of the RTC. The dispositive portion of the Decision of the CA reads:
WHEREFORE, in view of the foregoing, the appeal is DENIED. The
[Judgment] dated February 5, 2015 of the Regional Trial Court of Iriga City,
Branch 6, finding accused-appellant Eric Vargas guilty beyond reasonable
doubt of the crime of MURDER, is hereby AFFIRMED with the
MODIFICATION. ACCORDINGLY, appellant is hereby ordered to indemnify
the family of the victim Miguel Belen the following damages which shall bear
interest at the rate of six per cent (6%) per annum until fully paid, namely:
1. One Hundred Thousand Pesos (P100,000.00) as Moral Damages;
2. One Hundred Thousand Pesos (P100,000.00) as Civil Indemnity;
3. One Hundred Thousand Pesos (P100,000.00) as Exemplary Damages;
and
4. Seventy Five Thousand Pesos (P75,000.00) as Temperate Damages.
In all other respects, the herein appealed [Judgment] of the RTC of Iriga City,
Branch 60, is hereby AFFIRMED.

SO ORDERED.5
The CA found that the sworn statement of Belen, identifying Vargas as the
driver of the motorcycle of the shooting incident, is admissible as part of res
gestae, even if the statement was made in a question-and-answer format, three
(3) days after the shooting incident. The CA held that the statement was still
made under the influence of a startling event, given that Belen had to undergo
extensive surgery immediately after the incident. The CA held that the RTC
correctly admitted the Sworn Statement of Belen, and as the admissibility of
specific statements is a matter within the sound discretion of the trial court,
such determination of admissibility is conclusive upon appeal, especially if
there is no clear abuse of discretion.
The CA also found that the killing of Belen was attended by treachery and
evident premeditation, qualifying the crime as murder. Conspiracy between
Vargas and Bagacina was also duly proven by the prosecution, as they were
convincingly shown to have acted in concert to achieve a common purpose of
killing Belen. The conspiracy was manifest as Vargas was the driver of the
motorcycle which Bagacina, the shooter, rode at the time of the commission of
the crime. The motorcycle driven by Vargas was also the means by which he
and Bagacina fled the scene.

The CA modified the amount of damages awarded to the family of Belen, but
affirmed the decision of the RTC finding that the prosecution sufficiently
proved beyond reasonable doubt the guilt of Vargas.
The Issue

The issue to be resolved in this appeal is whether or not the CA erred in finding
Vargas guilty of the crime of Murder under the RPC.
The Ruling of the Court

We find the appeal to be without merit.

For a successful prosecution of Murder under Article 248 of the RPC, the
following elements must be proven: (1) a person was killed; (2) the accused
killed him; (3) the killing was attended by any of the qualifying circumstances
mentioned in Article 248; and (4) the killing is neither parricide nor
infanticide.6 In this case, we find that the prosecution sufficiently proved each
element beyond reasonable doubt.

The first and fourth elements are not contested by Vargas. The death of Belen
has been established by the Medico-Legal Certificate dated 14 July 2010,
Belen's Certificate of Death, and the testimony of Dr. Belgira. Moreover, there
is no allegation that Vargas and Belen are related. Thus, the killing is neither
parricide nor infanticide. Vargas only questions the finding of the lower courts
as to the second and third elements - whether Vargas was positively identified,
by admissible and credible evidence, as the person in conspiracy with the
woman who shot Belen, and whether the killing of Belen was qualified by the
circumstances of treachery and evident premeditation.
In particular, Vargas argues that the statements of Belen in his Sworn
Statement cannot be admitted as part of res gestae because the statement was
given three (3) days after the shooting incident.

We disagree.

In this case, we find that the Sworn Statement of Belen was correctly admitted
by the lower courts as part of res gestae to positively identify Vargas as the
driver of the motorcycle where the female who shot Belen was riding.

Section 36 of Rule 130 of the Rules of Court provides that "a witness can testify
only to those facts which he knows of his personal knowledge; that is, which
are derived from his own perception, except as otherwise provided in these
rules." However, there are exceptions to the hearsay rule, one of which is res
gestae, found in Section 42 of Rule 130, which provides:
SEC. 42. Part of res gestae. — Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto with
respect to the circumstances thereof, may be given in evidence as part of the res
gestae. So, also, statements accompanying an equivocal act material to the
issue, and giving it a legal significance may be received as part of the res gestae.
A declaration is deemed part of the res gestae and is admissible as an exception
to the hearsay rule when the following requisites are present: (1) the principal
act, the res gestae, is a startling occurrence; (2) the statements were made
before the declarant had time to contrive or devise; and (3) statements must
concern the occurrence in question and its immediately attending
circumstances.7

In this case, we find that all the requisites are present. The shooting incident
is a startling occurrence, and the statements of Belen, which concern the
shooting incident as he was identifying his assailants, were given before he
had time to contrive or devise a false statement. The mere fact that it took
Belen three (3) days before he was able to give his statement does not remove
such statement as part of res gestae.

There are two tests in applying the res gestae rule to determine whether or not
statements should be admissible as part of res gestae: (1) the act, declaration
or exclamation is so intimately interwoven or connected with the principal fact
or event that it characterizes as to be regarded as a part of the transaction
itself; and (2) the evidence clearly negates any premeditation or purpose to
manufacture testimony.8 To ascertain whether the evidence negates
fabrication, spontaneity of the statements must be determined.

Res gestae comprehends a situation which presents a startling or unusual

occurrence sufficient to produce a spontaneous and instinctive reaction, during
which interval certain statements are made under such circumstances as to
show lack of forethought or deliberate design in the formulation of their
content.9 As long as the statements were made voluntarily and spontaneously
so nearly contemporaneous as to be in the presence of the occurrence, although
not precisely concurrent in point of time, such must be admissible as part of res
gestae, if the statements were made under circumstances which exclude the
idea of design or deliberation.10 While there is no hard and fast rule, this Court
has considered a number of factors to determine spontaneity. In People v.
Estibal, the Court held:
By res gestae, exclamations and statements made by either the participants,
victims, or spectators to a crime, immediately before, during or immediately
after the commission of the crime, when the circumstances are such that the
statements constitute nothing but spontaneous reaction or utterance inspired
by the excitement of the occasion there being no opportunity for the declarant
to deliberate and to fabricate a false statement become admissible in evidence
against the otherwise hearsay rule of inadmissibility. x x x.

There is, of course, no hard and fast rule by which spontaneity may be
determined although a number of factors have been considered, including, but
not always confined to, (1) the time that has lapsed between the
occurrence of the act or transaction and the making of the statement,
(2) the place where the statement is made, (3) the condition of the
declarant when the utterance is given, (4) the presence or absence of
intervening events between the occurrence and the statement relative
thereto, and (5) the nature and the circumstances of the statement
itself, xxx.11 (Emphasis supplied)
Based on the test mentioned, we find that the Sworn Statement of Belen is
admissible in evidence as part of res gestae, as the statements made by Belen,
the victim of the startling occurrence, refer to the circumstances of the shooting
incident - particularly the actual perpetrators of the crime. We find that these
statements were made spontaneously considering the circumstances under
which they were made. Immediately after the shooting incident, Belen had to
undergo extensive surgery for the gunshot wounds he sustained. He was
unable to talk and had difficulty in breathing, but he managed to convey his
answers to the questions propounded to him through writing and moving his
head and hands. During the three (3) days that intervened the shooting
incident and when the statements were made, Belen had no time to
deliberately fabricate a story. He was in the hospital, receiving treatment for
his numerous wounds, fighting for his life. He could not even speak or
communicate verbally because of the intubation in his lungs. Given this
situation, it is clear that he had no time to contrive a false statement against
Vargas or Bagacina.

Belen positively identified Vargas as the driver of the motorcycle of the

shooting incident. SPO2 Hugo corroborated this statement, and testified as to
how Belen identified Vargas as the driver of the motorcycle in the shooting
incident. SPO2 Hugo testified that when Belen was shown the rogue gallery,
he saw Belen shake his head to signify that he did not recognize the pictures
in the particular page shown to him. After going through the first volume,
SPO2 Hugo testified that SPO3 Dino also clarified with Belen that he did not
recognize anyone from the first volume of the rogue gallery. SPO2 Hugo
continued his testimony by stating that while looking at the second volume, he
saw Belen wave his hand to SPO3 Dino who was flipping the pages, signaling
him to go back to the previous page. SPO2 Hugo then saw Belen point to one
of the pictures in that particular page. When SPO2 Hugo, while pointing to one
of the pictures, asked him "Amo adi?" (Is this the one?), Belen nodded. Belen
pointed to the person in the photograph and made a motion of wiping his face,
and then acted by his hands of a motion of driving a motorcycle. When SPO2
Hugo asked if the person he was pointing to was the driver of the motorcycle
of the shooting incident, Belen nodded, still making the gesture of driving a
motorcycle. When a copy of a picture was shown during trial, SPO2 Hugo
testified that it was the very same picture referred to by Belen in his Sworn
Statement, which was the photograph of Vargas. Based on the foregoing, it is
clear that despite not being able to communicate verbally, Belen had positively
identified Vargas as the driver of the motorcycle which his female assailant
was riding.
Moreover, we find that the lower courts did not err in giving weight to these
statements, especially given Vargas' weak defenses of denial and alibi. Vargas'
claim that he was having a drinking session when the incident happened
cannot prevail over the positive identification presented by the prosecution.

To be able to validly use the defense of alibi, two requirements must be met:
(1) that the accused was not present at the scene of the crime at the time of its
commission, and (2) that it was physically impossible for him to be there at the
time.12 Therefore, for the defense of alibi to prosper, it is not enough to prove
that the accused was somewhere else when the offense was committed; it must
likewise be demonstrated that he was so far away that it was not possible for
him to have been physically present at the place of the crime or its immediate
vicinity at the time of its commission.13 In this case, Vargas' statement is self-
serving and unreliable, especially as it remains unsubstantiated and
uncorroborated. It is well-settled that alibi and denial are outweighed by
positive identification that is categorical, consistent and untainted by any ill
motive on the part of the eyewitness testifying on the matter.14

Vargas further argues that the courts gravely erred in finding that there was
conspiracy between him and the female assailant in the shooting incident.

We disagree.

Based on the records, the lower courts were correct in finding that Vargas was
in conspiracy with the female assailant of Belen. Conspiracy is present when
there is unity in purpose and intention in the commission of a crime — it does
not require a previous plan or agreement to commit assault as it is sufficient
that at the time of such aggression, all the accused manifested by their acts a
common intent or desire to attack.15 Given that Belen's shooter was riding the
motorcycle driven by Vargas, which was the same motorcycle used to flee the
scene of the shooting incident, it is clear that Vargas and the female assailant
had a common purpose against Belen. Their acts were aimed at the
accomplishment of the same unlawful object, each doing a part so that their
combined acts indicate a closeness of personal association and a concurrence
of sentiment.16 By driving the motorcycle which carried the person who shot
Belen, there was clearly a conspiracy, a common intent and purpose, to kill
Belen.
Finally, we address the argument of Vargas that the lower courts erred in
appreciating the qualifying circumstances of treachery and evident
premeditation.

As to the finding of treachery, we find that the lower courts did not err in
finding that the killing of Belen was attended by treachery. Treachery must be
proved by clear and convincing evidence as conclusively as the killing
itself.17 Under Article 14, paragraph 16 of the RPC, two conditions must
necessarily occur before treachery or alevosia may be properly appreciated,
namely: (1) the employment of means, methods, or manner of execution that
would insure the offender's safety from any retaliatory act on the part of the
offended party, who has, thus, no opportunity for self-defense or retaliation;
and (2) deliberate or conscious choice of means, methods, or manner of
execution.18

In this case, the lower courts were correct in finding that both requisites were
present - Belen was unsuspecting and unaware of the threat to his life, when
he was shot several times, inflicting upon him mortal wounds. The suddenness
of the attack shows that Belen, who was unarmed, had no opportunity to
defend himself. Moreover, the wounds sustained by Belen show that treachery
attended his killing. The following findings of the trial court support the
finding of treachery: (1) the gun was fired not in succession but intermittently,
meaning that there was sufficient time for the assailant to have observed the
condition of Belen after each and every fire; (2) the quantity of bullets indicates
the intent of the assailant to kill the victim; and (3) the locations of the wounds
- with two coming from the back - show that it is possible that Belen was
already lying down when the shots were fired.19 The combination of the six (6)
gunshot wounds was found to be fatal and life-threatening, according to Dr.
Belgira, who examined Belen post mortem. Dr. Belgira opined that given the
locations of the gunshot wounds and the position of the victim as he was being
shot, treachery attended the shooting.

However, as to the finding of evident premeditation, we find that the

prosecution failed to prove the elements of evident premeditation. Similar to
treachery, evident premeditation must be clearly proven, established beyond
reasonable doubt and based on external acts that are evident, not merely
suspected, and which indicate deliberate planning.20 The prosecution must
prove, beyond reasonable doubt, each element of evident premeditation as
follows: (1) the time when the accused determined to commit the crime; (2) an
act manifestly indicating that the accused has clung to his determination; and
(3) sufficient time between such determination and execution to allow him to
reflect upon the consequences of his act.21 Absent any proof as to how and when
the plan to kill was hatched or what time elapsed before it was carried out,
evident premeditation cannot be appreciated.22

In this case, the prosecution failed to present any evidence as to when the plan
to kill Belen was determined by Vargas and the female assailant. The essence
of the circumstance of evident premeditation is that the execution of the
criminal act be preceded by calm thought and reflection upon the resolve to
carry out the criminal intent during the space of time sufficient to arrive at a
calm judgment.23 To warrant a finding of evident premeditation, it must
appear not only that the accused decided to commit the crime prior to the
moment of its execution but also that this decision was the result of meditation,
calculation, reflection, or persistent attempt.24 In this case, there was no
showing as to whether or not sufficient time had passed from the
determination to carry out their criminal plan until the execution of such plan.
Thus, evident premeditation cannot qualify the killing of Belen.

Based on the foregoing, we find that the lower courts were correct in imposing
the penalty of reclusion perpetua based on Article 248 of the RPC. However,
there is a need to modify the amount of indemnity awarded as the circumstance
of evident premeditation should no longer be appreciated as a generic
aggravating circumstance. The CA awarded P100,000.00 as moral damages;
P100,000.00 as civil indemnity; P100,000.00 as exemplary damages; and
P75,000.00 as temperate damages. However, as evident premeditation was
not attendant in the killing of Belen, this will no longer be appreciated as a
generic aggravating circumstance which would have meted the penalty of
death, which in turn would have justified the amounts awarded by the CA. In
light of People v. Jugueta,25 we award P75,000.00 as civil indemnity;
P75,000.00 as moral damages; and P75,000.00 as exemplary damages. As no
evidence was presented as to the medical treatment, burial and funeral
expenses, we also award P50,000.00 as temperate damages, in accordance
with People v. Jugueta.26 All damages awarded shall earn interest at the rate
of six percent (6%) per annum from the date of finality of this Decision until
fully paid.
WHEREFORE, the appeal is DISMISSED. The 15 November 2016 Decision
of the Court of Appeals in CA-G.R. CR-HC No. 07331 affirming the Judgment
dated 5 February 2015 of the Regional Trial Court of Iriga City, Branch 60, in
Criminal Case No. IR-9351 is AFFIRMED with MODIFICATION. The
award of civil indemnity, moral damages, and exemplary damages is reduced
to P75,000.00 each. The award of temperate damages is also reduced to
P50,000.00. Interest at the rate of 6% per annum is imposed on all damages
awarded from the date of finality of this Decision until fully paid.

SO ORDERED.