THIRD DIVISION

[G.R. No. 135222. March 04, 2005]

PETER ANDRADA, petitioner, PHILIPPINES, respondent. DE

SANDO!AL"G#TIERRE$, J.%

vs.

THE

PEOPLE

OF

THE

ISION

Before us is a petition for review on certiorari filed by Peter Andrada, petitioner, assailin t!e De"ision of t!e &ourt of Appeals dated Septe'ber $(, $))* in &A+,-R&R No- $.(.$ and its Resolution dated Au ust $0, $))(#$% #/%

In an Infor'ation dated 1anuary *, $)(*, t!e Offi"e of t!e &ity Prose"utor of Ba uio &ity "!ar ed petitioner wit! frustrated 'urder "o''itted as follows2

That on or about the 24th day of September 1986, in the City of Baguio, Philippines and ithin the !urisdi"tion of this #onorable Court, the abo$e%named a""used ith intent to &ill, ith e$ident premeditation and ith trea"hery, did then and there illfully, unla fully, and feloniously atta"&, assault and ha"& one '(S)*+, -.)(+, on the head t i"e ith a bolo thereby infli"ting upon latter/ ha"&ing ound, head, resulting in 10 s&ull and s"alp a$ulsion $erte12 20 depressed "omminuted s&ull fra"ture, right parieto o""ipital ith signifi"ant brain la"eration2 operation done2 "ranie"tomy2 $erte1 debridement2 "ranie"tomy2 right parieto o""ipital2 dural repair2 debridement, thus performing all the a"ts of e1e"ution hi"h ould produ"e the "rime of 3urder as a "onse4uen"e thereof, but ne$ertheless, the felony as not "onsummated by reason of "auses independent of the ill of the a""used, that is, by the timely medi"al attendan"e e1tended to 'rsenio -gerio hi"h pre$ented his death5 C,*T('(6 T, 7'85
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3!en arrai ned on 4ebruary ), $)(*, petitioner, wit! t!e assistan"e of "ounsel de parte, pleaded not uilty to t!e "ri'e "!ar ed- T!e !earin of t!e "ase ensued5viden"e for t!e prose"ution s!ows t!at on Septe'ber /0, $)(6, at around $$207 in t!e evenin , T8S t- Teodolfo Su'abon , of t!e defun"t P!ilippine &onstabulary 9P&:, was restin in t!e P& barra";s at &a'p Dado Dan wa, <a Trinidad, Ben uet w!en one Ro''el Al"ate "alled up re=uestin poli"e assistan"e- Al"ate "lai'ed t!at a roup of persons was suspi"iously roa'in around !is boardin !ouse in 4er uson Street, Ba uio &ity-

S t- Su'abon and two of !is "o'panions, S t- ,a"es and &pl- Arsenio > erio, went to Al"ete?s boardin !ouse, arrivin t!ere past 'idni !t- However, a""ordin to Al"ate, t!e suspi"ious persons !ave leftOn t!eir way ba"; to t!e "a'p at around $2$. in t!e 'ornin , t!e roup dropped by @orlow?s Restaurant, Bo;aw;an Street, Ba uio &ity, for a sna";- T!ey ordered "offee and sandwi"!es3!ile t!ey were waitin to be served, a wo'an passed by t!eir table- 3!ile &pl> erio was tal;in to !er, a 'an, later identified as Peter Andrada, !erein petitioner, approa"!ed t!e for'er and s"olded !i'- S t- Su'abon , identifyin !i'self as a P& non+"o''issioned offi"er, advised petitioner to pay !is bill and o !o'e as !e was apparently drun;Petitioner !eeded S t- Su'abon ?s advi"e for !e paid !is bill and left t!e restaurant wit! !is "o'panions- 3!ile S t- Su'abon was payin !is bill, !e !eard &pl- > erio, seated about a 'eter away, 'oanin in pain- 3!en S t- Su'abon turned around, !e saw &pl- > erio sprawled on t!e floor- Petitioner was !a";in !i' on t!e !ead wit! a bolo- S t- Su'abon approa"!ed t!e' but petitioner ran away, followed by a "o'panion- S t- Su'abon "!ased t!e' but to no avail>pon S t- Su'abon ?s instru"tion, S t- ,a"es brou !t &pl- > erio, t!e vi"ti', to t!e St- <ouis >niversity Hospital- T!en S t- Su'abon reported t!e in"ident to t!e poli"e station at &a'das Road and t!ereafter pro"eeded to t!e !ospital- 3!en !e returned to t!e poli"e station, !e learned t!at petitioner was arrested in a waitin s!ed at t!e "orner of &a'das Road and @a saysay AvenueT!e arrestin offi"ers t!en brou !t petitioner ba"; to t!e restaurant w!ere t!ey re"overed t!e bolo used in !a";in t!e vi"ti'- 3itnesses to t!e in"ident were interviewed by t!e poli"e and t!ey pointed to petitioner as t!e "ulpritDr- 4ran"is"o 4ernandeA, a neuro+sur ery "onsultant, found t!at t!e vi"ti' suffered two 9/: 'aBor inBuries- T!e first was a Cs"alpin avulsion,D around . "enti'eters wide, i-e-, t!e "!oppin off of a part of t!e vi"ti'?s s;ull- T!e se"ond was a depressed fra"ture, about 6 "enti'eters wide, found on t!e ri !t parieto occipital area of t!e s;ull5it!er wound, bein fatal, would !ave "aused t!e deat! of t!e vi"ti' !ad it not been for a ti'ely 'edi"al treat'ent- After t!ree 90: days, t!e vi"ti' was transferred to t!e V<una Hospital in EueAon &ity- Be"ause of t!e inBuries !e sustained, !e !as re'ained in"apable to re'e'ber or re"all visual stimuli or infor'ationPetitioner interposed self+defense and invo;ed t!e 'iti atin "ir"u'stan"e of voluntary surrender- His version is t!at !e and one Ro'y Ra'os were drin;in beer wit! a !ospitality irl na'ed C<iAaD inside @orlow?s Restaurant, w!en t!ree 'ilitary 'en o""upied t!e table neFt to t!e'- T!ey !ad pistols tu";ed in t!eir waists- 3it!out any warnin or provo"ation, two of t!e 'en, w!o' !e identified as &pl- > erio and S tSu'abon , approa"!ed !i', slapped !is fa"e several ti'es and pointed t!eir uns to !is !ead- T!ey "ursed !i' and t!reatened to su''arily eFe"ute !i' be"ause !e was Cso boastful-D &pl- > erio t!en C"ollaredD !i' and dra ed !i' outside t!e restaurant, w!ile S t- Su'abin followed- 4earful t!at !e 'i !t be ;illed, petitioner pulled out !is bolo, wrapped in a newspaper, fro' !is waist and swun it at t!e two 'ilitary 'en- He

did not see if !e !it any of t!e'- T!en !e ran to !is !ouse in &a'das Subdivision- He "!e";ed to see if !is 'ot!er or rand'ot!er was at !o'e so eit!er of t!e' "ould assist !i' in surrenderin to t!e poli"e- But neit!er was present- On !is way to surrender to t!e poli"e, !e 'et !is 'ot!er a""o'panied by a poli"e'an- T!ey t!en pro"eeded to t!e poli"e sub+station at @a saysay Avenue w!ere !e surrenderedAfter !earin , t!e trial "ourt rendered its De"ision, t!e dispositive portion of w!i"! is =uoted below, t!us2

8#)()9,(), premises "onsidered, the Court finds the a""used P)T)( '*:(':' guilty beyond reasonable doubt of the "rime of frustrated murder5 The Court hereby senten"es him to suffer the penalty of imprisonment of 8 years and 2; days as 3+*+3-3 to 14 years, 1; months and 2; days as 3'<+3-32 to indemnify the sum of P=,;;;5;;, representing part of the $i"tim>s e1penses for medi"al ser$i"es and medi"ine, and to pay the "osts5 S, ,(:)():5
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On appeal, t!e &ourt of Appeals affir'ed wit! 'odifi"ation t!e trial "ourt?s De"ision, t!us2

8#)()9,(), T#) :)C+S+,* 'PP)'7): 9(,3 +S #)()B6 '99+(3): 8+T# T#) 3,:+9+C'T+,* T#'T T#) 'PP)77'*T +S S)*T)*C): T, '* +*:)T)(3+*'T) P)*'7T6 ,9 9,-( ?40 6)'(S '*: T8, ?20 3,*T#S ,9 PRISION CORRECIONAL, 'S 3+*+3-3, T, )+.#T ?80 6)'(S '*: T8)*T6 ?2;0 :'6S ,9 PRISION MAYOR, 'S 3'<+3-35 S, ,(:)():5
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T!e &ourt of Appeals, in 'odifyin t!e i'posable penalty, found t!at petitioner is entitled to t!e privile ed 'iti atin "ir"u'stan"e of 'inority as !e was only $* years, ) 'ont!s and /7 days old at t!e ti'e of t!e in"identPetitioner t!en filed a 'otion for re"onsideration, but t!is was denied by t!e Appellate &ourt in its Resolution dated Au ust $0, $))(Hen"e, t!e instant petitionT!e issues for our resolution are2 9$: w!et!er petitioner?s ri !t to due pro"ess was violatedH 9/: w!et!er !is plea of self+defense is in orderH 90: w!et!er t!e "ri'e "o''itted is frustrated 'urder or frustrated !o'i"ideH and 9G: w!et!er !e is entitled to any 'iti atin "ir"u'stan"e, assu'in !e is uiltyOn t!e first issue, petitioner ar ues t!at t!e &ourt of Appeals erred in not !oldin t!at t!e trial "ourt violated !is "onstitutional ri !t to due pro"ess- He "ontends t!at !is "ounsel2

15 25 =5 45

9ailed to present all the itnesses ho "ould ha$e testified that he is inno"ent of the "rime "harged2 9ailed to present the medi"al "ertifi"ate sho ing the in!uries infli"ted upon him by the $i"tim2 :id not notify him to attend the hearing hen Sgt5 Sumabong as "ross% e1amined2 and 9ailed to submit a memorandum5

In su', petitioner as"ribes ross in"o'peten"e or ross ne li en"e to !is "ounselT!e Offi"e of t!e Soli"itor ,eneral 9OS,: "ounters t!at t!ere was no violation of petitioner?s ri !t to due pro"ess- Petitioner was represented by "ounsel of !is "!oi"e- If t!e latter?s perfor'an"e and "o'peten"e fell s!ort of petitioner?s eFpe"tations, t!en !e s!ould not bla'e eit!er t!e trial "ourt or t!e &ourt of AppealsIn "ri'inal "ases, t!e ne li en"e or in"o'peten"e of "ounsel to be dee'ed ross 'ust !ave preBudi"ed t!e "onstitutional ri !t of an a""used to be !eard#6%

In t!e followin "ases, we !eld t!at t!ere !as been in"o'peten"e on t!e part of "ounsel for t!e a""used, t!us2
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ross ne li en"e or

In US v. Gimenez, we re'anded a "ri'inal "ase for new trial w!en "ounsel for an a""used inadvertently substituted a plea of uilty for an earlier plea of not uilty, t!us resultin in t!e pre"ipitate "onvi"tion of !is "lientIn Aguilar v. Court of Appeals and People, we ordered a dis'issed appeal fro' a "onvi"tion for estafa to be reinstated after it was s!own t!at t!e failure to file t!e appellant?s brief on ti'e was due to s!eer irresponsibility on t!e part of appellant?s "ounsel#(%

In De Guzman v. Sandiganbayan, we re'anded t!e "ase for re"eption of eviden"e after "ounsel for t!e a""used filed a de'urrer to t!e eviden"e notwit!standin t!at !is 'otion for leave of "ourt was denied, t!us pre"ludin t!e a""used to present !is eviden"e#)%

In Reyes v. Court of Appeals, we ordered a new trial after a s!owin t!at "ounsel for t!e a""used abandoned !er wit!out eFplanation#$7%

In People v. ascuiguin, we !eld t!at t!e arrai n'ent is not valid- T!e a""used was not properly represented by "ounsel de officio sin"e !e 'erely "onferred wit! !is "lient for a few 'inutes and advised !i' to plead uilty to t!e "ri'e of rape wit! !o'i"ide#$$%

None of t!e fore oin in"idents is present in t!e instant "ase- Instead, re"ords s!ow t!at "ounsel for petitioner a"tively parti"ipated in t!e "ross+eFa'ination of t!e witnesses for t!e prose"ution to test t!eir "redibility- At any rate, t!e fa"t t!at !e did not "!oose to present ot!er witnesses did not affe"t any of petitioner?s substantial ri !ts-

Besides, said "ounsel 'i !t !ave valid reasons w!y !e did not "all to t!e witness stand t!ose witnesses3e note t!at petitioner was present durin t!e !earin - If !e believed t!at !is "ounsel de parte was not "o'petent, !e "ould !ave se"ured t!e servi"es of a new "ounsel- He did not- Havin de"ided to retain t!e servi"es of !is "ounsel durin t!e entire pro"eedin s, petitioner 'ust be dee'ed bound by any 'ista;e "o''itted by !i'- 4or if an a""used feels t!at !is "ounsel is inept, !e s!ould ta;e a"tion by dis"!ar in !i' earlier, instead of waitin until an adverse de"ision is rendered and t!ereupon bla'e !is "ounsel for in"o'peten"e#$/%

T!e lon +standin rule in t!is Burisdi"tion is t!at a "lient is bound by t!e 'ista;es of !is lawyer- @ista;es of attorneys as to t!e "o'peten"y of a witness, t!e suffi"ien"y, relevan"y or irrelevan"y of "ertain eviden"e, t!e proper defense or t!e burden of proof, failure to introdu"e eviden"e, to su''on witnesses, and to ar ue t!e "ase, unless t!ey preBudi"e t!e "lient and prevent !i' fro' properly presentin !is "ase, do not "onstitute ross in"o'peten"e or ne li en"e#$0%

Havin found t!at petitioner?s "ounsel was not so inept or 'otivated by bad fait!, or so "areless and ne li ent of !is duties as to seriously preBudi"e t!e substantial ri !ts of petitioner or prevent !i' fro' puttin up a proper defense, we !old t!at !e is bound by t!e de"isions of !is "ounsel re ardin t!e "ondu"t of t!e "ase#$G%

On t!e second issue, petitioner invo;es self+defense- Hen"e, it is in"u'bent upon !i' to prove by "lear and "onvin"in eviden"e t!at !e indeed a"ted in defense of !i'self- 4or in invo;in self+defense, t!e a""used ad'its ;illin or seriously woundin t!e vi"ti' and t!us, !as t!e burden to Bustify !is a"tT!e re=uisites of self+defense are2 9$: unlawful a ressionH 9/: reasonable ne"essity of t!e 'eans e'ployed to repel or prevent itH and 90: la"; of suffi"ient provo"ation of t!e part of t!e person defendin !i'self#$.% #$6%

3e find t!at t!e petitioner !as not ade=uately dis"!ar ed !is burden of provin t!e ele'ents of self+defense- T!e trial "ourt and t!e &ourt of Appeals found t!at at t!e ti'e !e !a";ed t!e vi"ti', &h' (a&&'r )a* *&+(( *'a&', w!ile h' -.'&+&+o/'r0 )a* 1'h+/, h+2. Indeed, !ow "ould t!ere be an unlawful a ression on t!e part of t!e vi"ti' at t!at instan"eI Petitioner?s bare assertions t!at t!e vi"ti' slapped !i', po;ed a !and un at !i', and t!reatened to Csalva eD !i' were not duly proved by t!e eviden"e for t!e defense- Rat!er, t!e prose"ution establis!ed t!at it was petitioner w!o uneFpe"tedly atta";ed t!e vi"ti' fro' be!ind- &learly, t!e a ressor was petitioner- Sin"e t!e first ele'ent of self+defense is not present !ere, su"! defense 'ust failOn t!e t!ird issue, petitioner "ontends t!at assu'in !e is uilty, !e s!ould only be "onvi"ted of frustrated !o'i"ide, not frustrated 'urder- He insists t!at trea"!ery was not present- His !a";in t!e vi"ti' was a Cspur+of+t!e+'o'entD a"t pro'pted by self+ preservation3e are not persuaded- T!ere is alevosia w!en t!e offender "o''its any of t!e "ri'es a ainst persons e'ployin 'eans, 'et!ods, or for's in t!e eFe"ution t!ereof w!i"! tend dire"tly and espe"ially to ensure t!e eFe"ution of t!e "ri'e wit!out ris; to !i'self fro' any defense w!i"! t!e offended party 'i !t 'a;e3e a ree wit! t!e
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lower "ourts t!at t!e petitioner planned to ;ill t!e vi"ti' wit! trea"!ery in 'ind- At t!at ti'e, t!e vi"ti' was seated, !avin Bust finis!ed a 'eal at a late !our- His ba"; was towards petitioner w!en t!e latter, wit!out warnin , !a";ed !i' twi"e on !is !ead wit! a bolo- T!e atta"; was so sudden and uneFpe"ted t!at t!e vi"ti' !ad no opportunity eit!er to avert t!e atta"; or to defend !i'self&onsiderin t!at petitioner !ad perfor'ed all t!e a"ts of eFe"ution w!i"! would !ave resulted in t!e deat! of t!e vi"ti', !ad it not been for ti'ely 'edi"al assistan"e, a "ause not of t!e will of t!e petitioner, and "onsiderin furt!er t!e presen"e of trea"!ery, t!en, t!e "ri'e "o''itted is frustrated 'urder, not frustrated !o'i"ideOn t!e fourt! issue, petitioner insists t!at t!e 'iti atin "ir"u'stan"e of voluntary surrender s!ould !ave been appre"iated in !is favor5viden"e for t!e prose"ution s!ows t!at petitioner, after atta";in t!e vi"ti', ran away- He was appre!ended by respondin poli"e offi"ers in t!e waitin s!ed at t!e "orner of &a'bas Road and @a saysay Avenue- 4or voluntary surrender to be appre"iated, t!e surrender 'ust be *.o/&a/'o3*, 'ade in su"! a 'anner t!at it s!ows t!e interest of t!e a""used to surrender un"onditionally to t!e aut!orities, eit!er be"ause !e a";nowled es !is uilt or wis!es to save t!e' t!e trouble and eFpenses t!at would be ne"essarily in"urred in !is sear"! and "apture- Here, t!e surrender was not spontaneous.
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Anent t!e 'odifi"ation of t!e penalty by t!e &ourt of Appeals, t!e sa'e is in order4HEREFORE, t!e petition is D5NI5D- T!e De"ision of t!e &ourt of Appeals dated Septe'ber $(, $))* and its Resolution dated Au ust $0, $))( in &A+,-R- &R No$.(.$ are A44IR@5D- &osts a ainst petitionerSO ORDERED. Panganiban, "C!airman#, Corona, Carpio$%orales , and Garcia, &&., "on"ur-

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Rollo at G$+./- Penned by Asso"iate 1usti"e ,loria &- Paras 9de"eased: and "on"urred in by Asso"iate 1usti"es <ourdes J-T- 1a uros 9retired: and Salvador 1- ValdeA, 1r'd- at .0+.G- Per Asso"iate 1usti"e Salvador 1- ValdeA, 1r-, wit! Asso"iate 1usti"es 5duardo &@ontene ro 9retired: and Renato &- Da"udao, "on"urrin 'd. at ..'d- at 6$+6/'d- at .$+./Reyes v. Court of Appeals, 00. P!il- /76, /$. 9$))*:0G P!il- *G 9$)$6:0/7 P!il- G.6 9$)).: ,-R- No- $70/*6, April $$, $))6, /.6 S&RA $*$ ,-R- No- $$$6(/, 4ebruary 6, $))*, /6* S&RA .G0-

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G$( P!il- /7) 9/77$: People v. Salido, ,-R- No- $$6/7(, 1uly ., $))6, /.( S&RA /)$, /)6(esoro v. Court of Appeals, ,-R- No- 06666, De"e'ber $), $)*0, .G S&RA /)6, 07G "itin People v. )er, ,-R- No- /..7G, 1uly 0$, $)6), /( S&RA $$.$, Rivero v. Santos et al., )( P!il- .77 9$).6:, 'saac v. %endoza, () P!il- /*) 9$).$:H %ontes v. C*' of (ayabas, G( P!il- 6G7 9$)/6:H People v. %anzanilla, G0 P!il- $6* 9$)//:H US v. Dungca, /* P!il- /*G 9$)$G:H US v. Umali, $. P!il- 00 9$)$7:Del %ar v. Court of Appeals, G/) P!il $), /) 9/77/: People v. Ambrocio, et al., ,-R- No- $G7/6*, 1une /), /77G at $(+$), "itin People v. Cabical, ,-R- No$G(.$), @ay /), /770, G70 S&RA /6(People v. Pateo and atuto, ,-R- No- $.6*(6, 1une 0, /77G at 6People v. +scote, et al-, ,-R- No- $.$(0G, 1une (, /77G at 6, "itin People v. Conde, 0(6 P!il- (.) 9/777:People v. %arcelo, ,-R- No- $G70(., April $G, /77G at $., "itin People v. ,co, ,-R- Nos- $0*0*7+*$, Septe'ber /., /770, G$/ S&RA $)7-

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