Premeditation argument

The requirements to prove evident premeditation are the

following: (1) the time when the offender determined to commit
the crime; (2) an act manifestly indicating that the culprit has
clung to his determination; and (3) sufficient lapse of time
between the determination and execution to allow him to reflect
upon the consequences of his act.1

The premeditation to kill must be plain and notorious; it

must be sufficiently proven by evidence of outward acts showing
the intent to kill. In the absence of clear and positive evidence,
mere presumptions and inferences of evident premeditation, no
matter how logical and probable, are insufficient. 2 It bears
reiterating that a qualifying circumstance such as evident
premeditation must be proven as clearly as the crime itself.
Corollarily, every element thereof must be shown to exist beyond
reasonable doubt and cannot be the mere product of
speculation.3

Testimonies of the prosecution likewise prove that the time

of the altercation when accused decided to shoot Chico Ambon
was insufficient to prove premeditation The first requirement
therefore has not been met. Witness Cabangon stated in his
testimony that the order of the incident lacks the material time
for the accused to kill the victim.

Q: And then what happened when Realizan was

pushed by that man?
A: After he was shoved, he moved backwards and he
fell down, sir.
Q: After Realizan fell down, what did he do?

1
People v. Base, G.R. No. 109773; March 30, 2000.
2
People v. Chua, G.R No. 121792; October 7, 1998.
3
People v. Timblor, G.R. No. 118939; January 27, 1998.
 A: When Realizan fell down and he was about to
stand, he was kicked hitting his stomach.
xxx
Q: What happened after that?
A: When Realizan was holding his stomach pain, and
they about to attack him and there was a shot then I
ran because it was already a gunshot, I got frightened,
sir.

Meanwhile, the prosecution’s basis for premeditation was

only based on surmises and presumptions. They lacked sufficient
evidence as to prove that there was material time between the
planning and the execution so as to premeditate.

Similarly, the second requirement is absent. If the time

when accused decided to shoot Chico Ambon cannot be
determined with certainty due to failure of prosecution to
determine material time for premeditation, then indeed one
cannot infer that he clung to his determination to kill the victim.
In fact, one cannot infer if at all that the act after stepping out of
the vehicle presumably to seek settlement for the damage to the
victim’s car is the overt act manifesting his determination to stab
the victim.

Settled is the rule that when it is not shown how and when
the plan to kill was hatched or what time had elapsed before it
was carried out, evident premeditation cannot be considered. 4

The last requirement is likewise lacking for the prosecution

to invoke premeditation. Accused-appellant’s act of stepping out
from the vehicle was too short a time for him to meditate or
reflect upon the consequences of his decision to shoot victim
4
People v. Basao, G.R. No. 128286; July 20, 1999.
Ambon. 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.5

A perusal of the testimonies on record shows that the

altercation between the accused Realizan and the victim Ambon
took place simultaneously, at the same hour when Realizan
stepped out of the vehicle in order to settle matters with the
victim. It was in that same moment that after inflicting upon the
accused punches and kicks that the victim was shot. It was
unfortunate indeed that, due to the aggression of the victim and
his companions, their actions led to the ultimate death of the
victim. The lapse of time between the decision to kill and the
execution is insufficient to allow appellant to fully reflect upon
the consequences of his act and to effectively and efficiently
prepare and plan his actions prior to the commission of the
crime.

I. MITIGATING
CIRCUMSTANCES OF
SURRENDER IS PRESENT
The mitigating circumstance available should at least
modify the judgment

The trial court, in pronouncing the accused as guilty of the

crime of murder as stated in the information, failed to
incorporate the mitigating circumstance of voluntary surrender.

Voluntary surrender is a circumstance that reduces the

penalty for the offense. Its requisites as a mitigating
circumstance are that: (1) the accused has not been actually
arrested; (2) the accused surrenders himself to a person in
authority or the latter’s agent; and (3) the surrender is
voluntary.6
5
People v. Eribal, G.R. No. 127662; March 25, 1999.
6
Article 13, paragraph 7, Revised Penal Code; People of the Philippines v. Ignacio, G.R. No.
134568; February 10, 2000 People v. Antonio, G.R. No. 128900; July 14, 2000.
 For voluntary surrender to mitigate criminal liability, the
following elements must concur: (1) the offender has not been
actually arrested; (2) the offender surrenders himself to a person
in authority or to the latters agent; and (3) the surrender is
voluntary.7 To be sufficient, the surrender must be spontaneous
and made in a manner clearly indicating the intent of the
accused to surrender unconditionally, either because they
acknowledge their guilt or wish to save the authorities the
trouble and the expense that will necessarily be incurred in
searching for and capturing them.8

The essence of voluntary surrender is spontaneity and the

intent of the accused to give himself up and submit himself to the
authorities either because he acknowledges his guilt or he
wishes to save the authorities the trouble and expense that may
be incurred for his search and capture.9

In the present case, the accused is entitled to the

mitigating circumstance of voluntary surrender because all three
requisites of a voluntary surrender had been made. Accused
Realizan, in this case surrendered even before a warrant of
arrest was served neither was there an actual arrest. It was
established that the surrender of accused was made a day after
the attack, after shooting victim Ambon, the accused
surrendered himself to the authority wishing to save the
authorities the trouble and expenses necessary for searching and
capturing him in the alternative case he decided to flee and hide.
His surrender was on his own volition. This fact had not been
disturbed by the prosecution and was not challenged by them
during any of the proceedings. In this instance, the prosecution
also admitted that this circumstance of voluntary surrender is
present in said case.

7
Ladiana v. People, G.R. No. 144293; December 4, 2002
8
Ibid.
9
Belbis v. People, G.R. No. 181052; November 14, 2012