Homicide & Lack of Qualifying Circumstance in Killing

Neither does the fact that Arenas was in between Contapay and Aviles conclusively prove the presence of treachery. While this situation proved fatal to Arenas who had nowhere to run, there was no evidence that this situation was deliberately and consciously adopted to ensure safety of the malefactor from defensive or retaliatory action on the part of the victim. As we have similarly held in People v. Latag, "Furthermore, no other circumstance attendant to the shooting supports the allegation that appellant carefully and deliberately planned the killing in a manner that would ensure his safety and success. There were no indications that he had deliberately chosen the place, the time or the method of killing. In addition, there was no showing that the meeting between him and the victim had been planned. The fact that the former was seen by Atienza behind some shrubs after a gunshot had rung out does not, by itself, compel a finding of treachery. Such a finding must be based on some positive proof, not merely on an inference drawn more or less logically from a hypothetical fact. Apparent from the assailed Decision of the trial court is that it simply surmised that treachery had attended the killing."

As no qualifying circumstance attended the killing, Christopher Aviles can only be convicted of homicide. Homicide is punishable by reclusion temporal. There being no mitigating or aggravating circumstances proven in the case at bar, the penalty should be applied in its medium period of 14 years, 8 months and 1 day to 17 years and 4 months. Applying the Indeterminate Sentence Law, the maximum penalty will be selected from the above range, with the minimum penalty being selected from the range of the penalty one degree lower than reclusion temporal, which is prision mayor (six years and one day to 12 years). We find the indeterminate sentence of 10 years and one day of prision mayor, as minimum to 14 years and one day of reclusion temporal, as maximum to be sufficient. (G.R. No. 172967; December 19, 2007)