A CASE BRIEF ON JUSTIFYING CIRCUMSTANCE,

MITIGATING CIRCUMSTANCE
AND STATUTORY CONSTRUCTION OF
PD 968 (THE PROBATION LAW)

Submitted by:
Rolther V. Capio, LLB I
August 2, 2013

662 SCRA 267 -293

December 13, 2011

G.R. No. 182748

ARNEL COLINARES,
Petitioner
- versus PEOPLE OF THE PHILIPPINES
Respondent
FACTS OF THE CASE:
The public prosecutor of Camarines Sur charged the accused Arnel
Colinares (Arnel) with frustrated homicide before the Regional Trial Court
(RTC) of San Jose, Camarines Sur.
Complainant Rufino P. Buena (Rufino) testified, that at around 7:00 in
the evening on June 25, 2000, he and Jesus Paulite (Jesus) went out to buy
cigarettes at a nearby store. On their way, Jesus took a leak by the roadside
with Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck
Rufino twice on the head with a huge stone, about 15 inches in diameter.
Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking home when
he saw Rufino lying by the roadside. Ananias tried to help but someone
struck him with something hard on the right temple, knocking him out. He
later learned that Arnel had hit him.
Paciano Alano (Paciano) testified that he saw the whole incident since
he happened to be smoking outside his house. He sought the help of a
barangay tanod and they brought Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal Certificate showing that
Rufino suffered two lacerated wounds on the forehead, along the hairline
area. The doctor testified that these injuries were serious and potentially
fatal but Rufino chose to go home after initial treatment.
The defense presented Arnel and Diomedes Paulite (Diomedes).
Arnel claimed self-defense. He testified that he was on his way home that
evening when he met Rufino, Jesus, and Ananias who were all quite drunk.
Arnel asked Rufino where he supposed the Mayor of Tigaon was, but rather
than reply, Rufino pushed him, causing his fall. Jesus and Ananias then
boxed Arnel several times on the back. Rufino tried to stab Arnel but missed.
The latter picked up a stone and, defending himself, struck Rufino on the
head with it. When Ananias saw this, he charged towards Arnel and tried to
stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with
the same stone. Arnel then fled and hid in his sisters house. On
September 4, 2000, he voluntarily surrendered at the Tigaon Municipal
Police Station.
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Diomedes testified that he, Rufino, Jesus, and Ananias attended a prewedding party on the night of the incident. His three companions were all
drunk. On his way home, Diomedes saw the three engaged in heated
argument with Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty
beyond reasonable doubt of frustrated homicide and sentenced him to
suffer imprisonment from two years and four months of prision correccional,
as minimum, to six years and one day of prision mayor, as maximum. Since
the maximum probationable imprisonment under the law was only up to six
years, Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking self-defense
and, alternatively, seeking conviction for the lesser crime of attempted
homicide with the consequent reduction of the penalty imposed on him.
The CA entirely affirmed the RTC decision but deleted the award for lost
income in the absence of evidence to support it. Not satisfied, Arnel comes
to this Court on petition for review.
In the course of its deliberation on the case, the Court required Arnel
and the Solicitor General to submit their respective positions on whether or
not, assuming Arnel committed only the lesser crime of attempted homicide
with its imposable penalty of imprisonment of four months of arresto mayor,
as minimum, to two years and four months of prision correccional, as
maximum, he could still apply for probation upon remand of the case to the
trial court.
Both complied with Arnel taking the position that he should be
entitled to apply for probation in case the Court metes out a new penalty on
him that makes his offense probationable. The language and spirit of the
probation law warrants such a stand. The Solicitor General, on the other
hand, argues that under the Probation Law no application for probation can
be entertained once the accused has perfected his appeal from the
judgment of conviction.
LEGAL ISSUES PRESENTED:
1.
Whether or not Arnel acted in self-defense when he struck
Rufino on the head with a stone;
2.
Assuming he did not act in self-defense, whether or not Arnel is
guilty of frustrated homicide; and
3.
Given a finding that Arnel is entitled to conviction for a lower
offense and a reduced probationable penalty, whether or not he may still
apply for probation on remand of the case to the trial court.
DECISION OF THE COURT
The Court PARTIALLY GRANTS the petition, MODIFIES the Decision
(with a vote of 8-7) dated July 31, 2007 of the Court of Appeals in CA-G.R.
CR 29639, FINDS petitioner Arnel Colinares GUILTY beyond reasonable
doubt of attempted homicide, and SENTENCES him to suffer an
indeterminate penalty from four months of arresto mayor, as minimum, to
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two years and four months of prision correccional, as maximum, and to pay
Rufino P. Buena the amount of P20,000.00 as moral damages, without
prejudice to petitioner applying for probation within 15 days from notice that
the record of the case has been remanded for execution to the Regional Trial
Court of San Jose, Camarines Sur, in Criminal Case T-2213.

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RATIONALE OF THE DECISION

One. Arnel claims that Rufino, Jesus, and Ananias attacked him first
and that he merely acted in self-defense when he hit Rufino back with a
stone.
When the accused invokes self-defense, he bears the burden of
showing that he was legally justified in killing the victim or inflicting injury to
him. The accused must establish the elements of self-defense by clear and
convincing evidence. When successful, the otherwise felonious deed would
be excused, mainly predicated on the lack of criminal intent of the accused
Here, the lower courts found that Arnel failed to prove the element of
unlawful aggression. He alone testified that Jesus and Ananias rained fist
blows on him and that Rufino and Ananias tried to stab him. No one
corroborated Arnels testimony that it was Rufino who started it. Arnels
only other witness, Diomedes, merely testified that he saw those involved
having a heated argument in the middle of the street. Arnel did not submit
any medical certificate to prove his point that he suffered injuries in the
hands of Rufino and his companions
Two. But given that Arnel, the accused, was indeed the aggressor,
would he be liable for frustrated homicide when the wounds he inflicted on
Rufino, his victim, were not fatal and could not have resulted in death as in
fact it did not?
The main element of attempted or frustrated homicide is the
accuseds intent to take his victims life. The prosecution has to prove this
clearly and convincingly to exclude every possible doubt regarding
homicidal intent. And the intent to kill is often inferred from, among other
things, the means the offender used and the nature, location, and number
of wounds he inflicted on his victim.
Here, Arnel struck Rufino on the head with a huge stone. The blow
was so forceful that it knocked Rufino out. Considering the great size of his
weapon, the impact it produced, and the location of the wounds that Arnel
inflicted on his victim, the Court is convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of attempted,
not frustrated, homicide. In Palaganas v. People, we ruled that when the
accused intended to kill his victim, as shown by his use of a deadly weapon
and the wounds he inflicted, but the victim did not die because of timely
medical assistance, the crime is frustrated murder or frustrated homicide. If
the victims wounds are not fatal, the crime is only attempted murder or
attempted homicide
Rufino had two lacerations on his forehead but there was no
indication that his skull incurred fracture or that he bled internally as a result
of the pounding of his head. The wounds were not so deep, they merely
required suturing, and were estimated to heal in seven or eight days.
Taken in its entirety, there is a dearth of medical evidence on record
to support the prosecutions claim that Rufino would have died without
timely medical intervention. Thus, the Court finds Arnel liable only for
attempted homicide and entitled to the mitigating circumstance of voluntary
surrender.

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Three. Ordinarily, Arnel would no longer be entitled to apply for

probation, he having appealed from the judgment of the RTC convicting him
for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of attempted
homicide and holds that the maximum of the penalty imposed on him
should be lowered to imprisonment of four months of arresto mayor, as
minimum, to two years and four months of prision correccional, as
maximum. With this new penalty, it would be but fair to allow him the right
to apply for probation upon remand of the case to the RTC.
But, firstly, while it is true that probation is a mere privilege, the point
is not that Arnel has the right to such privilege; he certainly does not have.
What he has is the right to apply for that privilege. The Court finds that his
maximum jail term should only be 2 years and 4 months. If the Court allows
him to apply for probation because of the lowered penalty, it is still up to the
trial judge to decide whether or not to grant him the privilege of probation,
taking into account the full circumstances of his case.
Secondly, it is true that under the probation law the accused who
appeals from the judgment of conviction is disqualified from availing
himself of the benefits of probation. But, as it happens, two judgments of
conviction have been meted out to Arnel: one, a conviction for frustrated
homicide by the regional trial court, now set aside; and, two, a conviction for
attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinions hard position, it
will apply the probation law on Arnel based on the trial courts annulled
judgment against him. He will not be entitled to probation because of the
severe penalty that such judgment imposed on him. More, the Supreme
Courts judgment of conviction for a lesser offense and a lighter penalty will
also have to bend over to the trial courts judgmenteven if this has been
found in error. And, worse, Arnel will now also be made to pay for the trial
courts erroneous judgment with the forfeiture of his right to apply for
probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the
horse errs, the carabao gets the whip). Where is justice there?
DISSENTING OPINION: Written by Justice Martin S. Villarama, Jr.
I join the majority in ruling that petitioner should have been
convicted only of the lesser crime of attempted homicide and that the
maximum of the indeterminate prison term imposed on him should be
lowered to four months of arresto mayor, as minimum, to two years and
four months of prision correccional, as maximum. However, I disagree
with their conclusion (by 8-7 vote) that on grounds of fairness, the Court
should now allow petitioner the right to apply for probation upon remand
of the case to the trial court.
I submit the following principles which should be controlling on the
present issue:
1. Probation being a mere privilege, this Court may not
grant as relief the recognition that accused-appellant
may avail of it as a matter of right.

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2. The probation law is not a penal statute and therefore

the principle of liberal interpretation is inapplicable.
The majority reasoned that since the trial court imposed a (wrong)
penalty beyond the probationable range, thus depriving the accused of the
option to apply for probation when he appealed, the element of
speculation that the law sought to curb was not present. Noting that the
accused in this case claimed that the evidence at best warranted his
conviction only for attempted, not frustrated homicide, the majority opined
that said accused had, in effect, sought to bring down the penalty as to
allow him to apply for probation.
I cannot concur with such proposition because it seeks to carve out
an exception not found in and contrary to the purpose of the probation
law.
The pronouncement in Francisco that the discretion of the trial court
in granting probation is to be exercised primarily for the benefit of
organized society, and only incidentally for the benefit of the accused,
underscored the paramount objective in granting probation, which is the
reformation of the probationer.
This notwithstanding, the majority
suggests that remorse on the part of the accused is not required, or least
irrelevant in this case because the Court cannot expect petitioner to feel
penitent over a crime, which the Court now finds, he did not commit, as
he only committed attempted homicide.
It must be stressed that in foreclosing the right to appeal his
conviction once the accused files an application for probation, the State
proceeds from the reasonable assumption that the accuseds submission
to rehabilitation and reform is indicative of remorse. And in prohibiting the
trial court from entertaining an application for probation if the accused has
perfected his appeal, the State ensures that the accused takes seriously
the privilege or clemency extended to him, that at the very least he
disavows criminal tendencies. Consequently, this Courts grant of relief to
herein accused, whose sentence was reduced by this Court to within the
probationable limit, with a declaration that accused may now apply for
probation, would diminish the seriousness of that privilege because in
questioning his conviction accused never admitted his guilt. It is of no
moment that the trial courts conviction of petitioner for frustrated
homicide is now corrected by this Court to only attempted homicide.
Petitioners physical assault on the victim with intent to kill is unlawful or
criminal regardless of whether the stage of commission was
frustrated or attempted only.
Allowing the petitioner the right to
apply for probation under the reduced penalty glosses over the fact that
accuseds availment of appeal with such expectation amounts to the same
thing: speculation and opportunism on the part of the accused in violation
of the rule that appeal and probation are mutually exclusive remedies.
The ponencia then declares that the
question in this case is
ultimately one of fairness, considering the trial courts erroneous
conviction that deprived petitioner of the right to apply for probation, from
which he had no way of obtaining relief except by appealing the judgment.

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Such liberality accorded to the accused, for the reason that it was not
his fault that the trial court failed to impose the correct sentence, is
misplaced.
It is settled that the Probation Law is not a penal statute. In the
matter of interpretation of laws on probation, the Court has pronounced
that the policy of liberality of probation statutes cannot prevail against
the categorical provisions of the law. In applying Sec. 4 of P.D. No. 968 to
this and similar cases, the Court must carefully tread so as not to digress
onto impermissible judicial legislation whereby in the guise of
interpretation, the law is modified or given a construction which is
repugnant to its terms. As oft-repeated, the remedy lies in the legislature
and not judicial fiat.
SIGNIFICANCE OF THE CASE
The case is significant due to the following;
1.
The case presents a dilemma on whether or not a person acted
in self-defense, and whether the acts committed by the person are justified
in view of the facts/evidences gathered.
2.
Through this case the court also delineated the difference
between frustrated and attempted homicide. The latter being the decision of
the court overturning that previously rendered by the RTC and appellate
court.
3.
In this case, a significant dilemma on how the PD 968 or the
Probation law should be construed taking into account the full
circumstances of this case.
The question in this case is ultimately one of fairness. Is it fair to
deny Arnel the right to apply for probation when the new penalty that the
Court imposes on him is, unlike the one erroneously imposed by the trial
court, subject to probation?

****END OF REPORT***

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