G.R. No. 238798 - Concurring and Dissenting Opinion

G.R. No. 238798, March 14, 2023,
♦ Decision, Zalameda, [J]
♦ Concurring Opinion, Gesmundo, [CJ]
♦ Concurring Opinion, Inting, [J]
♦ Concurring Opinion, J. Lopez, [J]
♦ Concurring and Dissenting Opinion, Leonen, [J]
♦ Concurring and Dissenting Opinion, Hernando, [J]
♦ Concurring and Dissenting Opinion, Kho, [J]
♦ Dissenting Opinion, Caguioa, [J]
♦ Dissenting Opinion, M. Lopez, [J]
♦ Dissenting Opinion, Gaerlan, [J]
♦ Dissenting Opinion, Lazaro-Javier, [J]

I concur with the admissibility of the statement made by the victim, AAA, to his mother as part of the res gestae exception of the hearsay rule under Section 36, Rule 130 of the Revised Rules on Evidence (the prevailing rule when the criminal case against petitioner CICL XXX was tried).

Despite my concurrence on that matter, I respectfully dissent to the conviction of CICL XXX. As will be discussed in this Opinion, CICL XXX should be acquitted of Homicide due to (a) the prosecution's failure to allege discernment in the Information and duly prove its existence during trial; and (2) the failure of the trial court to actively determine the existence of discernment.

As a brief background, this case stemmed from an Information1 filed before the Regional Trial Court of La Trinidad, Benguet, Branch 9 (RTC) charging CICL XXX with Homicide.

The prosecution alleged that on October 27, 2003, AAA testified against CICL XXX, then 17 years old, in a barangay hearing for a complaint for physical injuries filed by a certain BBB against the latter. The next day at 3:00 a.m., AAA's mother heard AAA shouting "Mama! Mama!" AAA's parents immediately went outside and saw AAA lying in front of their gate with bloodied face and eyes. AAA narrated that he saw CICL XXX and a companion inside their house, and when he inquired on what they were doing there, the latter replied that they were looking for someone. AAA then followed them, but soon thereafter, CICL XXX struck his eyes.2

On October 29, 2003, AAA complained of dizziness and that one of his eyes appeared to be popping out. Thus, he was immediately brought to the hospital where it was found out that he was suffering from severe brain damage. After being bed-ridden for 5 years, AAA died due to "metabolic encephalopathy... secondary to ischemic infarction, and the underlying cause is Acute Intraparenchymal Hemorrhages, Bifrontal and Right Temporal Lobes with Subarachnoid and Subdural Extension secondary to Blunt Trauma to the Head."3

For his part, CICL XXX denied the charges against him. He claimed that he met AAA during the hearing of the complaint filed by BBB at the barangay. He further averred that he was drinking with his friends on October 27, 2003 until 4:00 a.m. the next day, and that afterwards, he went home to Barangay Dizon, Baguio City. He then claimed that he was a student at the time but quit school when the case was filed. He then went home to Sagada to work as a tourist guide instead.4

In a Decision5 dated February 28, 2014, the RTC convicted CICL XXX of Homicide. This was affirmed by the Court of Appeals (CA) in a Decision6 dated November 29, 2017. In convicting CICL XXX, the CA held that the prosecution sufficiently established that the ultimate cause of AAA's death was the force of the blow of a blunt object used in hitting his head. However, it found that CICL XXX was entitled to the privileged mitigating circumstance of minority, being only 17 years old when the crime was committed, and that he may serve his sentence in an agricultural camp or other training facilities pursuant to Republic Act No. (RA) 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006."

The ponencia denied the petition, and accordingly, affirmed CICL XXX's conviction of Homicide and his corresponding civil liability. Moreover, it remanded the case to the RTC for its appropriate action in accordance with Section 51 of RA 9344. In finding that the elements of Homicide were present in this case, the ponencia held that prosecution witnesses' testimonies may be admitted as part of the res gestae, and that the prosecution was able to prove that CICL XXX hit AAA in the head with a blunt instrument, causing brain injury which led to his death.7

On the other hand, the ponencia found that the exempting circumstance of minority was not present because CICL XXX acted with discernment based on the totality of circumstances of the case despite the prosecution's failure to allege discernment in the Information and the trial court's failure to discuss discernment in its decision.8

Anent the failure to allege discernment in the Information, the ponencia, applying People v. Solar (Solar),9 held that defense's failure to interpose any objection to the amended Information resulted to the waiver of his right to question the defect. Anent the trial court's failure to discuss discernment, the ponencia held that the required finding of discernment was satisfied when the CA made its own finding considering that an appeal in criminal cases opens the entire case for review allowing appellate courts full discretion over the case.10

Finally, the ponencia held that CICL XXX is liable to the civil liabilities arising from his actions as a result of his conviction of Homicide, and accordingly, remanded the case to the RTC for its appropriate action in accordance with Section 51 of RA 9344.11

As adverted to, I express my agreement with the ponencia insofar as its discussion on the admissibility of the prosecution's testimony may be admitted as part of res gestae. however, as I have preliminary discussed, I respectfully enter my dissent in relation to affirming CICL XXX's conviction, for reasons as will be explained hereunder.

In order to secure a conviction for Homicide, the following must be established by the prosecution: (a) a person was killed; (b) the accused killed him/her without any justifying circumstance; (c) the accused had the intention to kill, which is presumed; and (d) the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide.12

In this case, the prosecution was able to establish that: (a) CICL XXX hit AAA with a blunt instrument in his eyes, which eventually resulted to the latter's death; and (b) the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide. Notably, in establishing the foregoing facts, the prosecution resorted to the testimony of AAA's mother, who essentially stated that AAA told her that it was CICL XXX who struck him.

In this regard, Section 36, Rule 130 of the Revised Rules on Evidence (the prevailing rule when the criminal case against CICL XXX was tried) provides for what is known as the "hearsay rule", i.e., 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."

One of the recognized exceptions to the hearsay rule is when the testimony forms part of the res gestae. In this regard, Section 42, Rule 130 of the Revised Rules on Evidence reads:

Section 42. Part of res gestae. — Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of 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.

There are three (3) essential requisites to admit evidence as part of the res gestae, namely: (1) that the principal act, the res gestae be a startling occurrence; (2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the statements must concern the occurrence in question and its immediate attending circumstances.13

In this case, as aptly pointed out by the ponencia, all the aforesaid requisites were present as: (a) CICL XXX's act of hitting AAA in the eyes causing bleeding is a startling occurrence; (b) AAA related the incident to his mother immediately after the incident or before he had the opportunity to contrive or concoct a story; and (c) AAA's statements were made spontaneously and directly pertaining to the startling occurrence itself.1aшphi1

Under ordinary circumstances, the foregoing is already sufficient to secure a conviction against an accused. However, a significant circumstance is obtaining in this case, particularly, the fact that CICL XXX was only 17 years old when the crime occurred.

In this regard, it is well to point out that Section 6 of RA 9344 adjusted the minimum age of criminal responsibility, as follows:

RA 9344 was enacted into law on April 28, 2006 and took effect on May 20, 2006. Its intent is to promote and protect the rights of a child in conflict with the law or a child at risk by providing a system that would ensure "that children are dealt with in a manner appropriate to their well-being through a variety of disposition measures such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programs and other alternatives to institutional care."

More importantly in the context of this case, RA 9344 modifies as well the minimum age limit of criminal irresponsibility for minor offenders; it changed what paragraphs 2 and 3 of Article 12 of the Revised Penal Code (RPC), as amended, previously provided – i.e., from "under nine years of age" and "above nine years of age and under fifteen" (who acted without discernment) – to "fifteen years old or under" and "above fifteen but below 18" (who acted without discernment) in determining exemption from criminal liability.

In providing such exemption, RA 9344 – as the old paragraphs 2 and 3, Article 12 of the RPC did – presumes that the minor offenders completely lack the intelligence to distinguish right from wrong, so that their acts are deemed involuntary ones for which they cannot be held accountable. RA 9344 also drew its changes from the principle of restorative justice that it espouses; it considers the ages 9 to 15 years as formative years and gives minors of these ages a chance to right their wrong through diversion and intervention measures.14

Consequently, the 2019 Supreme Court Revised Rules on Children in Conflict with the Law took effect on July 7, 2019.15 Section 44 thereof provides for the guiding principle in rendering a judgment in Child in Conflict with the Law (CICL) cases, thus:

In Dorado v. People (Dorado),16 the Court, speaking through Justice Jose C. Mendoza, held that if a minor committed a crime, it cannot be presumed that he or she acted with discernment. As such, it is imperative upon the prosecution to prove as a separate circumstance that the CICL committed the crime with discernment,17 thus:

To be sure, discernment is the mental capacity of a minor to fully appreciate the consequences of his unlawful act – to understand the difference between right and wrong. Such capacity may be known and should be determined by taking into consideration all the facts and circumstances afforded by the records in each case.19 The basic reason behind the exempting circumstance of lack of discernment is the complete absence of intelligence – freedom of action of the offender which is an essential element of a felony by dolus or culpa. Intelligence is the power to determine the morality of human acts to distinguish a licit from an illicit acts.20

In proving the existence of discernment, the Senate deliberations of RA 9344 instruct that the prosecution must specifically prove as a separate circumstance that the minor committed the alleged crime with discernment.21 "The prosecution is burdened to prove that the accused acted with discernment by evidence of physical appearance, attitude or deportment not only before and during the commission of the act, but also after, and during the trial. The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was wrong. Such circumstance includes the gruesome nature of the crime and the minor's cunning and shrewdness."22 Failure to establish the same necessarily results to the acquittal of the CICL.

Since the existence of discernment is considered as a separate circumstance that needs to be proven at the trial, it goes without saying that such circumstance must likewise be sufficiently alleged in the Information charging a CICL with a crime. Relevant to this discussion are Sections 8 and 9, Rule 110 of the 2000 Revised Rules of Criminal Procedure which reads:

Section 8. Designation of the offense. — The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

Section 9. Cause of the accusation. — The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.

In People v. Lapore (Lapore),23 the Court, through Justice Jose P. Perez, held that aggravating or qualifying circumstances that were not alleged in the information cannot be appreciated against an accused, even if the same is duly proven beyond reasonable doubt during trial, and to rule otherwise would be to violate the accused's right to be informed of the nature and cause of accusation against him, viz.:

Sections 8 and 9 of Rule 110 of the Rules on Criminal Procedure provide that for qualifying and aggravating circumstances to be appreciated, it must be alleged in the complaint or information. This is in line with the constitutional right of an accused to be informed of the nature and cause of the accusation against him. Even if the prosecution has duly proven the presence of the circumstances, the Court cannot appreciate the same if they were not alleged in the Information. Hence, although the prosecution has duly established the presence of the aforesaid circumstances, which, however, were not alleged in the Information, this Court cannot appreciate the same. x x x24 (Emphasis and underscoring supplied)

While Lapore involves the propriety of alleging aggravating and qualifying circumstances in an Information in relation to the accused's right to be informed of the nature and cause of accusation against them, it is respectfully submitted that the logic stated therein is even more applicable insofar as the special circumstance of discernment is concerned, considering that the same is determinative of the CICL's criminal liability – in particular, if there is discernment, the CICL is criminally liable; otherwise, he is exempt from criminal liability.

Thus, when the accused is a child between 15 and 18 years of age, the prosecution must: first, duly allege the fact of discernment in the Information; and second, establish with proof beyond reasonable doubt not only the existence of all the elements of the crime charged, but also the existence of discernment on the part of the accused. Otherwise, the accused shall be exempt from criminal liability. More significantly, the responsibility of knowing whether a CICL acted with discernment is two-fold: (1) the prosecution's positive duty to allege discernment in the Information and duly prove its existence during trial; and (2) the trial court's positive duty to determine the existence of discernment.

A review of the records shows that the two-fold responsibility was not present in this case.

First, records reveal that the prosecution not only failed to duly allege the existence of the circumstance of discernment when it amended the Information in this case on June 8, 2009,25 it also failed to make any effort to prove discernment during trial.

Records show that while the Information was filed on March 1, 2004, or before RA 9344 took effect on May 20, 2006, the Information was amended to Homicide on June 8, 200926 and the prosecution only concluded the presentation of its evidence on March 28, 2011,27 both after the effectivity of the same law. Thus, the prosecution had sufficient time after the effectivity of RA 9344 (i.e., on May 20, 2006) to amend the Information to include therein a specific allegation pertaining to the existence of discernment on the part of CICL XXX, and thereafter, prove such existence by proof beyond reasonable doubt. The prosecution, however, miserably failed to do so. In fact, the prosecution even voluntarily waived its right to cross-examine not only CICL XXX but also its witness.28

It must be emphasized that the prosecution should have applied provisions of RA 9344 (i.e., the amendments to the minimum age of responsibility) in favor of the accused in line with Article 22 of the RPC mandating that "[p]enal laws shall have a retroactive effect in so far as they favor the person guilty of a felony or misdemeanor, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving same."

Second, even if all the elements of the crime charged are proven beyond reasonable doubt, the prosecution's failure to sufficiently allege the existence of discernment in the Information against CICL XXX precludes the courts from issuing a judgment of conviction against the latter; to rule otherwise would be to violate his right to be informed of the nature and cause of accusation against him.

In Villarba v. Court of Appeals,29 the Court, through now Senior Associate Justice Marvic M.V.F. Leonen, elucidated on this right, as follows:

It bears reiterating that in crimes involving CICLs, the existence of discernment is equally important as the elements of the crime charged. Otherwise stated, if the existence of discernment on the part of the CICL: (a) is not alleged in the Information; (b) is not alleged in the Information but proven at the trial; or (c) is not alleged in the Information and not proven at the trial, the CICL's acquittal will ensue on the ground that he is exempt from criminal liability. THIS CANNOT BE WAIVED.

At this juncture, I am aware that in the case of Solar, the Court En Banc, through Justice Alfredo Benjamin S. Caguioa (Justice Caguioa), laid down the following guidelines:

In my considered view, the Solar guidelines only apply in instances where there is a "defective" allegation in the Information, as in that case where the Information broadly alleged that the killing involved therein was attended "with treachery and abuse of superior strength" without, however, providing the factual allegations constituting such circumstances. Verily, the Solar guidelines do not apply if there is a total lack of factual allegations pertaining to key elements or circumstances that would affect the accused's criminal liability.

In this case, while CICL XXX's minority was alleged in the amended Information dated June 8, 2009, the same totally lacks any factual allegation pertaining to the existence of discernment. To be sure, the accusatory portion of such Information reads:

Verily, absent any allegation pertaining to the existence of discernment on the part of CICL XXX, a CICL, in the Information, NO VALID JUDGMENT OF CONVICTION can be rendered against him.

Since discernment was not indicated in the Information nor was it mentioned during the trial of the case, the Court cannot make its own determination of discernment as it will clearly violate CICL XXX's right to due process, particularly, his right to be informed of the nature and cause of the accusation against him.

To emphasize, it is the duty of the prosecutor "to state with sufficient particularity not just the acts complained of or the acts constituting the offense, but also the aggravating circumstances, whether qualifying or generic, as well as any other attendant circumstances, that would impact the penalty to be imposed on the accused should a verdict of conviction be reached."33 Thus, an allegation in the Information that the CICL "acted with discernment" in the commission of the crime if the accused is below 17 years old is essential as it will affect the child's criminal responsibility, as in this case.

As a basic principle in criminal law, the starting point of every criminal prosecution is that the accused has a constitutional right to be presumed innocent. Thus, the courts, in arriving at their decisions, are instructed by no less than the Constitution to bear in mind that no person should be deprived of life or liberty without due process of law. An essential component of the right to due process in criminal proceedings is the right of the accused to be sufficiently informed, in writing, of the cause of the accusation against him.34 It is in pursuit of this purpose that the Rules of Court and jurisprudence require that the Information allege the ultimate facts constituting the elements of the crime charged, as well as the circumstances that would affect the penalty to be imposed on the accused. Details that do not go into the core of the crime need not be included in the Information, but may be presented during trial.35 It is thus imperative that the Information filed with the trial court be complete – to the end that the accused may suitably prepare his defense.36 This is because the accused is presumed to have no independent knowledge of the facts that constitute the offense.37 Verily, failure to make a proper allegation in the Information will violate the right of the accused to be informed of the nature and cause of the accusation against him.

Third, even assuming that there was a proper allegation of discernment in the Information, a circumspect examination of the records shows that what was only established by the prosecution was the intent of CICL XXX to commit the crime. In CICL XXX v. People,38 the Court, speaking through Justice Caguioa, eloquently explained that discernment and intent are two (2) different concepts, viz.:

To reiterate, the presence of discernment cannot be presumed, it must be duly alleged in the Information, and thereafter, proven beyond reasonable doubt as a separate circumstance.40 Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Only moral certainty is required, or that degree of proof which produces conviction in an unprejudiced mind.41 The importance of proving the guilt of the accused beyond reasonable doubt was explained in People v. Claro,42 where the Court, through Justice Lucas P. Bersamin elucidated:

As earlier stated, the prosecution's failure to allege in the Information the presence of discernment, and thereafter, establish the same beyond reasonable doubt during the trial of the case will necessarily result a finding that CICL XXX is exempt from criminal liability.

Finally, again even assuming arguendo that there was a sufficient allegation of discernment in the Information, the RTC made no pronouncement if CICL XXX acted with discernment. On the other hand, the CA, although stating that CICL XXX acted with discernment, failed to provide its basis for its findings.

In Dorado, the Court held that since there was no finding of discernment by the trial court, it cannot rule with certainty as to the CICL's criminal responsibility. Accordingly, it held that in the absence of such determination, it was presumed that the CICL acted without discernment, and hence, deemed exempted from criminal liability.44

Furthermore, in CICL XXX v. People,45 the Court held that the RTC and CA erred in convicting CICL XXX as the discussion pertained to intent to kill, and not acting with discernment. Both the RTC and CA made no pronouncement if CICL XXX acted with discernment in committing the crime.46

In this relation, I respectfully express my disagreement with the ponencia's holding that the principle of retroactivity of penal laws should be balanced with the prosecution's burden to prove an added element of a crime, viz.:

Also, as aptly stated by Associate Justice Jhosep Y. Lopez, allowing for the CA's determination as to the presence of discernment found in the record strikes a balance between the principle of retroactivity of penal laws favorable to an accused vis-à-vis the prosecution's burden to prove an added element of a crime, especially considering the peculiar situation in this case.47 (Emphasis supplied)

I respectfully submit that the above-cited statement of the ponencia flies in the face of well-settled principles of statutory construction.

To recall, Article 22 of the RPC states that "[p]enal laws shall have a retroactive effect in so far as they favor the person guilty of a felony or misdemeanor x x x." The plain meaning rule or verba legis in statutory construction enjoins that if the statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without interpretation.48 In this relation, well-settled is the rule that "criminal and penal statutes must be strictly construed, that is, they cannot be enlarged or extended by intendment, implication, or by any equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted."49 Applying these principles, nothing in the provisions of Article 22 of the RPC and RA 9344 makes any mention to favor or give leeway to the courts to strike a balance between the rights of the accused and the duty of the State to prove the elements of the crime. Even assuming that an ambiguity exists in the interpretation of these provisions of the law, the cited statement of the ponencia likewise runs contrary to the principle that "[a]ny criminal law showing ambiguity will always be construed strictly against the state and in favor of the accused."50 Hence, there is no obligation for the courts to strike a balance between the rights of the accused, on one hand, and the obligation of the prosecution to prove an element, on the other. Taken together, such statement creates a dangerous precedent as it undermines well-entrenched principles which are meant to protect the accused from possible abuses of the law.

To end, it is fitting to remind public prosecutors of their crucial role in crafting the Information, and proving discernment in CICL cases. Verily, failure of the prosecution to do so would make all their efforts futile, and consequently, said lapses may result to denial of justice.51

In view of the foregoing, I respectfully vote to ACQUIT CICL XXX of the crime charged for the prosecution's failure to allege, much less prove, discernment.