PEOPLE OF THE PHILIPPINES, G.R. No. 153875Plaintiff-Appellee,

Present: - versus - PANGANIBAN, C.J.,

(Chairperson)  YNARES-SANTIAGO, AUSTRIA-MARTINEZ, ROLANDO DAGANI y REYES

CALLEJO, SR. andCHICO-NAZARIO, JJ.

and OTELLO SANTIANO YLEONIDA, Promulgated:Accused-Appellants. August 16, 2006

Facts :The appellants are security officers of PNR. On about 4:45 pm of September 11, 1989 the group

of Javier was drinking at the canteen located at the compound of PNR. The appellants as security officers of PNR was instructed to look for the commotion created allegedly by the group of Javier. Dagani first entered then Santiano. A fight ensued then Javier was Shot by Santiano using his service firearm a 38 caliber while Dagani was holding Javier’s hands and in an out of balance position. They invoke the justifying circumstance of Self- Defense and Lawfuk exercise of duty. The trial court and CA still convicted them of Murder with treachery under art 248 of RPC. The case went to SC for review.

Held: The SC held that the unlawful aggression which is an indespensible element of self defense is

not present for it is proven that Javier was not able to use his 22 caliber, if there were really unlawful aggression it is not imminent because Dagani has overpowered Javier. The SC also are not persuaded that they are in lawful exercise of duty.Treachery under par .16 of Article 14 of the Revised Penal Code is defined as the del iberate employment of means, methods or forms in the execution of a cr ime against persons which tend direct ly and specia l ly to insure i ts execution, without r isk to the offender ar is ing from the defense which the intended v ictim might raise . Treachery is present when two conditions concur , namely : (1) that the means, methods and forms of execution employed gave the person attacked no opportunity to defend h imsel f or to reta l iate; and (2) that such means, methods and forms of execution were del iberately and consciously adopted by the accused without danger to his person. [ 4 5 ]

This Court has held that the suddenness of the attack, the infliction of the wound f rom behind the v ictim, the vu lnerable position of the v ictim at the time the attack was made, or the fact that the v ictim was unarmed, do not by themselves render the attack as treacherous.[ 4 6 ] This i s of particular s ign ificance in a case of an instantaneous attack made by the accused whereby he gained an advantageous position over the v ictim when the latter acc idental ly fe l l and was rendered defenseless . [ 4 7 ] The means employed for the commiss ion of the cr ime or the mode of attack must be shown to have been consciously or del iberate ly adopted by the accused to insure the consummation of the cr ime and at the same time e l iminate or reduce the r isk of reta l iation f rom the intended v ictim. [ 4 8 ] For the ru les on treachery to apply, the sudden attack must have been preconceived by the accused, unexpected by the v ictim, and

without provocation on the part of the latter. [ 4 9 ] Treachery is never presumed. L ike the rules on conspiracy, i t i s required that the manner of attack must be shown to have been attended by t reachery as conc lus ive ly as the cr ime i tse l f . [ 5 0 ]

The prosecution fa i led to convincingly prove that the assault by the appel lants had been del iberate ly adopted as a mode of attack intended to insure the k i l l ing of Jav ier and without the latter having the opportunity to defend himsel f . Other than the bare fact that Santiano shot Javier whi le the latter had been struggl ing with Dagani over the possess ion of the .22 ca l iber gun, no other fact had been adduced to show that the appel lants consciously p lanned or predetermined the methods to insure the commiss ion of the cr ime, nor had the r isk of the v ictim to reta l iate been e l iminated during the course of the struggle over the weapon, as the latter, though struggl ing, had not beencomplete ly subdued. As a l ready stated, th is Court must emphasize that the mere suddenness of the attack, or the vu lnerable position of the v ictim at the time of the attack, or yet even the fact that the v ictim was unarmed, do not by themselves make the attack t reacherous.[ 5 1 ] I t must be shown beyond reasonable doubt that the means employed gave the v ictim no opportunity to defend himsel f or reta l iate , and that such means had been del iberate ly or consc iously adopted without danger to the l i fe of the accused. [ 5 2 ]

For these reasons, the Court i s inc l ined to look upon the help less position of Jav ier as merely inc idental to the attack, and that the decis ion to shoot Javier was made in an instant . appel lant Santiano may only be convicted of Homicide. [ 5 4 ] The penalty , therefore, under Article 249 of the Revised Penal Code, as amended, i s reclus ion   temporal .The Office of the Sol ic i tor General i s correct in that the courts a quo  fa i led to consider the aggravating c i rcumstance of tak ing advantage of officia l position under Artic le 14 (1) of the Revised Penal Code, s ince the accused, a PNR secur i ty officercovered by the Civ i l Serv ice, committed the cr ime with the a id of a gun he had been author ized to carry as such. [ 5 5 ] Considering that the mitigating c i rcumstance of vo luntary surrender, as duly appreciated by the courts a quo, shal l be offset against the aggravating c i rcumstance of taking advantage of officia l position, the penalty should be imposed in i t s medium per iod, pursuant to Article 64 (4) of the aforesaid Code.Apply ing the Indeterminate Sentence Law, the sentence of appel lant Santiano wi l l consist of a min imum that i s anywhere within the ful l range of pris ion mayor , and a maximum which is anywhere with in reclus ion   temporal in i ts medium per iod. This Court hereby fixes i t to be from eight (8) years and one (1) day of pris ion mayor as min imum, to fourteen (14) years , e ight (8) months, and one (1) day of reclus ion   temporal , as maximum.

WHEREFORE, the Decis ion of the Court of Appeals in CA-G.R. CR No. 15304 dated June 20, 2002 is MODIFIED. Appel lant Otel lo Santiano y Leonida is found GUILTY beyond reasonable doubt of Homicide and is sentenced to suffer the penalty of an indeterminate sentence f rom eight (8) years and one (1) day of pris ion mayor as min imum to fourteen (14) years , e ight (8) months, and one (1) day of reclus ion   temporal as max imum.Appel lant Santiano is further ordered to pay the heirs of the v ictim the amounts of P 50,000.00 as death indemnity , P 31,845.00 as funeral and bur ial expenses, P 25,000.00 as exemplary damages, P 30,000.00 as attorneys fees and P 1,000.00