Republic of the Philippines

C O U RT O F APPEALS
Manila

-oOo-

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

CA-G.R. CR NO. 42982

RTC BR. 26, San Fernando City, La Union

-versus- RTC Crim. Case Nos. 9237 & 9238
For: Frustrated Homicide

DOROTEO FONTANILLA,
Accused-Appellant.
X- - - - - - - - - - - - - - - - - - - - - - - - - X

APPELLANT’S BRIEF

SUBMITTED BY:

MOSUELA-GONZALES & ASSOCIATES LAW OFFICES

Counsel for the Accused-Appellant
NORTESURLU Bldg., Purok 3, Sevilla
San Fernando City, 2500 La Union

JAIME C. GONZALES, JR.

Roll No. 68552, May 29, 2017
IBP O.R. No. 098528, January 4, 2019 (LU Chapter)
PTR No. LU 3411669A, January 4, 2019
MCLE Comp. No. VI-0007263, valid until April 14, 2022

Page 1 of 15
 SUBJECT INDEX
Page No(s).

PREFATORY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

BRIEF STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . 4-6

BRIEF STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

ASSIGNMENT OF ERRORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENTS

“Intent to kill must be proved beyond reasonable doubt” 7-9

“Misappreciation and misinterpretation of prosecution

evidence resulting in grave miscarriage of justice” 9 - 11

“ Accused-appellant never passed the subjective phase

in the commission of the crime” 11- 14

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

VERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

PROOF OF SERVICE COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . 15

__________________________________________________________________

TABLE OF CASES, STATUTES CITED

& ANNEXES

CASES Page No(s).

1. United States v. Eduave, G.R. No. L-12155,

February 2, 1917 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. PP v. Caballero, 448 Phil. 514. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

3. PP v. Gargar, 300 SCRA 452 (1998). . . . . . . . . . . . . . . . . . . . . . . . 9

4. PP v. Cubcubin, Jr., G.R. No. 136267, July 10, 2001.. . . . . . . . . . . 9

5. PP v. Custodio, 47 SCRA 289 (1972) . . . . . . . . . . . . . . . . . . . . . . . 9

6. PP v. Lavarias, 23 SCRA 1301 (1967). . . . . . . . . . . . . . . . . . . . . . . 9

7. PP v. Reyes, 60 SCRA 126 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . 9

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 2 of 15
8. Colinares v. People, G.R. No. 182748, December 13, 2011 . . . . . . 12

9. PP v. Sumalpong, 343 Phil. 501. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

10. Dimakuta v. People, G.R. No. 206513, October 20, 2015. . . . . . . . 13

STATUTES

Rules of Court

Revised Rules of Criminal Procedure, Rule 112 (6). . . . . . . . . . . . . 7

Revised Penal Code

Article 125. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Article 51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Article 249 . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Article 263 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

PD 968 (Probation Law), Section 9 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ANNEXES

ANNEX A Joint Resolution, September 6, 2011 with attached

Information, Inquest Prosecutor, Pablo M. Lachica. . 5

ANNEX B Joint Decision, Criminal Case Nos. 9237 & 9238,

September 20, 2018, PP v. Doroteo Fontanilla . . . . . 5

ANNEX C Motion for Reconsideration, October 1, 2018 on the

Joint Decision of the RTC, September 20, 2018 . . . . 6

ANNEX D Order of Denial, October 22, 2018 by the RTC on the

Motion for Reconsideration . . . . . . . . . . . . . . . . . . . . 6

ANNEX E Notice of Appeal, November 28, 2018. . . . . . . . . . . . 6

ANNEX F Order of the CA, March 26, 2019 for submission of

Appellant Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Republic of the Philippines

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 3 of 15
 C O U RT O F APPEALS
Manila

-oOo-

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

CA-G.R. CR NO. 42982

RTC BR. 26, San Fernando City, La Union

-versus- RTC Crim. Case Nos. 9237 & 9238
For: FRUSTRATED HOMICIDE

DOROTEO FONTANILLA,
Accused-Appellant.
X- - - - - - - - - - - - - - - - - - - - - - - - - X

APPELLANT’S BRIEF

THE ACCUSED-APPELLANT, through the undersigned counsel, and unto

this Honorable Court hereby submits his Appellant Brief for the resolution of the
above-entitled case.

PREFATORY STATEMENT

In an attempted crime, the purpose of the offender must be thwarted by a

foreign force or agency which intervenes and compels him to stop prior to the
moment when he has performed all the acts which should produce the crime as a
consequence, which act is his intention to perform.1

BRIEF STATEMENT OF THE CASE

The above-cited cases are for FRUSTRATED HOMICIDE based on a JOINT

RESOLUTION dated September 6, 2011 issued by the Inquest Prosecutor, Deputy
Provincial Prosecutor Pablo M. Lachica on the case finding that the crime of
Homicide in the Attempted Stage may have been committed and herein Accused-
appellant is probably guilty thereof, the dispositive portion2 is hereto quoted to wit:
“XXX
1 United States v. Eduave; G.R. No. L-12155, February 2, 1917
2 ANNEX “A” Joint Resolution dated September 6, 2011; Inquest Investigator Pablo M. Lachica, with attached Information

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 4 of 15
 “WHEREFORE, above premises being considered, the undersigned is of the
opinion that there exist a probable cause that the crimes of two (2) Frustrated
Homicide and two (2) Attempted Homicide may have been committed and the
Respondent is probably guilty thereof.
XXX.”
Pursuant to the foregoing, two (2) Information, for Criminal Case No. 9237 3
and Criminal Case No, 92384 were filed for two (2) counts of Frustrated Murder
against herein Accused-appellant on September 8, 2011 and bail was set for Php
24,000.00 for each count.
Arraignment were conducted for both cases and Accused-appellant pleaded
NOT GUILTY to the crime charged in the two (2) information and Pre-Trial
Conference were conducted subsequently and a joint trial of the two (2) criminal
cases was conducted.
After presentation of the parties’ evidence, the cases were submitted for
decision.
On September 20, 2018 the Regional Trial Court Branch 26, First Judicial
region, San Fernando City, La union issued a JOINT DECISION anent Criminal
Case Nos. 9237 and 9238 and was promulgated on the same date, the dispositive
portion5 is hereto quoted to wit:
“XXX
WHEREFORE, premises considered, judgment is hereby rendered declaring
the accused Doroteo Fontanilla GUILTY beyond reasonable doubt of the crimes of
Frustrated Homicide under Article 249 in relation to Articles 50 and 250 all of the
Revised Penal Code, as amended in both cases, Criminal Case Nos. 9237 and
9238, and is hereby sentenced to suffer in each case, absent any mitigating or
aggravating circumstance attending the commission of the crimes, the
Indeterminate penalty of Four (4) years and Two (2) months of prision mayor as
minimum to Ten (10) years of prision mayor as maximum and to indemnify each of
the victims Bernie Dacumos and Brigida Dacumos, respectively of temperate
damages of Five Thousand Pesos (Php5,000.00), subject to interest at the legal
rate of six percent (6%) per annum from the date of the finality of this Decision
until fully paid, without any subsidiary imprisonment in case of insolvency. Cost
against the accused.
SO ORDERED.
XXX”
A Motion for Reconsideration6 of the Decision was filed by the Accused-
appellant thru counsel on October 1, 2018 before the RTC First Judicial Region -

3 Information, PP v. Doroteo Fontanilla; re: Brenie Dacumos, private complainant (Record of the Case)
4 Information, PP v. Doroteo Fontanilla; re: Brigida Dacumos, private complainant (Record of the case)
5 ANNEX “B” Joint Decision, Criminal Case Nos. 9237 & 9238; dated September 20, 2018 PP v. Doroteo Fontanilla with
manifestation re: page 3
6 ANNEX “C” Motion for Reconsideration dated October 1, 2018 of Decision of the RTC dated September 20, 2018

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 5 of 15
Branch 26, San Fernando City, La Union but was denied in an Order 7 by the
Honorable Court dated October 22, 2018.
Accused-appellant filed a Notice of Appeal8 on November 28, 2018 and was
given due course by the court a quo.

On April 26, 2019, the undersigned counsel received the order9 of this
Honorable Court dated March 26, 2019 requiring the Accused-appelant to file his
Appellant’s Brief within thirty (30) days from notice.

Hence for this brief.

BRIEF STATEMENT OF FACTS

In the Information, the private complainants, Brenie Dacumos alleged that the
accused-appellant attacked, assaulted and hacked her resulting to multiple lacerated
wound on her back, shoulders, traumatic amputation of her 2 nd and 3rd digit
metacarpo phalangeal joint-left¹; and similarly, Brigida F. Dacumos alleged that the
accused-appellant attacked, assaulted and hacked her resulting to multiple
lacerations on her scalp, face, neck, and traumatic amputation of her medial
phalanx, 2nd digit right hand and proximal phalanx, 3rd digit right hand.
On the other hand, Accused-appellant filed his Counter Affidavit through his
counsel and alleged that he did not have any intent to kill nor harm, neither to
intentionally cause the injuries suffered by the private complainants as he was first
provoked by Brenie Dacumos for calling Accused-appellant’s wife as “WITCH” by
uttering the words, “ADDA MANEN DIAY ASAWA TI MANGKUKULAM” 10
(The husband of the witch is here again).
The resulting injuries to Brenie Dacumos and Brigida Dacumos were the result
of defending himself when the altercation between him and Brenie Dacumos
started, with the latter first attempted hacking the Accused-appellant with her bolo
but failed as she was subsequently wrested possession of her bolo by the former;
and subsequently was joined almost at the same time by other relatives of the
latter; Brigida Dacumos, and Isabelo and Louie Glen Dacumos, who at the time
were both armed with their bolos and were both aiming their thrusts towards the
accused as they rushed in and joined the altercation.
In the ensuing turn of events, Accused-appellant did not have any option but to
use the bolo he wrested from Brenie and used it to parry the attacks and onslaught
of Brenie, Brigida, and Isabelo and Louie Glenn Dacumos with their bolos who
were all in collective efforts to pin him down but failed to do so because herein
accused-appellant continuously swung the bolo right and left, and in a hacking
position at his attackers to defend himself from the impending threat to his life.
The bolo which the accused-appellant allegedly used was never recovered nor
presented at the trial/ hearing of the case because as Isabelo and Louie Glenn
7 ANNEX “D” Order of Denial dated October 22, 2018 re: Motion for Reconsideration dated October 1, 2018
8 ANNEX “E” Notice of Appeal dated November 28, 2018 on the Denial of Motion for Reconsideration
9 ANNEX “F” Order of the CA dated March 26, 2019 for submission of Appellant’s Brief
10 Judicial Affidavit of Doroteo Fontanilla, Q&A No. 8, p. 2

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 6 of 15
Dacumos retreated from the site of the incident, Accused-appellant threw the bolo
behind and hurriedly ran back to his house and never saw it again.
The altercation that fateful night of August 15, 2011 between the Accused-
appellant and Brenie Dacumos were preceded by acts of the latter, Brigida and
other members of their family of spreading rumors that the wife of herein Accused-
appellant is a “WITCH” which fact was testified upon by the witnesses presented
by Doroteo Fontanilla during their presentation at the witness stand.
Accused-appellant was arrested and brought to jail and during Inquest
proceedings filed a waiver11 under Article 125 of the Revised Penal Code and and
asked for a preliminary investigation12 and subsequently submitted his Counter-
Affidavit as required by the Rules. Subsequently posted bail and was released
pending resolution of the case.

ASSIGNMENT OF ERRORS

1. Whether or not the trial court erred in convicting herein Accused-

appelant for the crime of FRUSTRATED HOMICIDE?

2. Whether or not the trial court has grossly misappreciated and

misinterpreted the evidence on record resulting in a grave miscarriage
of justice by convicting herein Accused-appellant for the crime
charged?

3. Whether or not the Accused-appelant should have been convicted of a

lesser offense of serious physical injuries or attempted homicide instead
of the crime charged?

ARGUMENTS

“Intent to kill must be proved beyond reasonable doubt”

If one inflicts physical injuries on another but the latter survives, the crime
committed is either consummated physical injuries, if the offender had no intention
to kill the victim; or frustrated or attempted homicide or frustrated murder or
attempted murder if the offender intends to kill the victim.13

Intent to kill may be proved by evidence of: (a) motive; (b) the nature or
number of weapons used in the commission of the crime; (c) the nature and
number of wounds inflicted on the victim; (d) the manner the crime was

11 Article 125, Revised Penal Code

12 Rules of Court, Revised Rules on Criminal Procedure, Rule 112 (6)
13 PP v. Caballero, 448 Phil. 514

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 7 of 15
committed; and (e) words uttered by the offender at the time the injuries were
inflicted by him on the victim.

In the present case, the intent to kill was not evidently established beyond
reasonable doubt despite the testimonies of the victims and their witnesses on the
manner of execution of the attack as well as the number of wounds the victims
sustained. The alleged attack perpetrated by the accused against Brenie was
claimed to be motivated by the Brenie’s uttering some word which angered the
family of the accused but by the same words used by the Honorable Court a quo,
such a provocation could not be proven beyond reasonable doubt and considered to
have sufficiently provoked herein accused to harbor intent to kill Brenie; neither,
Brigida for that matter. There is no prosecution evidence that contradicts such fact.

On page no. 4, par. 1 of the assailed Decision of the Court a quo, Brenie
Dacumos, the court noted that “She admitted uttering some word(s) which angered
the family of the accused”. 14 Also, the court further stated in the same paragraph of
page no. 4, “Third, even assuming that Bernie provoked him, the same could not be
considered a sufficient unlawful aggression because he could have run off when
Brenie tried to attack him but then accused decided to stay and even went for the
bolo”.15 With these observations by the Court a quo, it still considered the accused
to have compelling reason to kill Brenie, where by its own words, it considered
Brenies’ provocation to herein Accused-appellant not sufficient and all he did is
just to preserve his life by wresting Brenie’s bolo and used the same to parry the on
rushing onslaught of Isabelo and Louie Glenn Dacumos with their own respective
bolos trusted towards the direction of herein Accused-appellant.

On pages 2 - 3 of the TSN dated July 15, 2014 16, he following are being
reproduced to wit:

Q - Madam witness, do you have a dispute with the accused prior to the
incident of August 15, 2011?
A - None, sir.

Q - Do you know of any reason why the accused would enter your
home in the evening of August 15, 2011?
A - Because his wife was having an altercation with us and also his son,
sir.

Q - What is the altercation that you mentioned?

A - I said, “Why are they doing this to us, we have done nothing
wrong”, sir.

Q - To whom are you talking with when you said “why are you doing
this to us, we have done nothing wrong to you?
A - I did not mention any name, sir.

14 Ibid. 5, page 4 par. (1)

15 Ibid. 5, page 4 par. (1-a)
16 TSN dated July 15, 2014, re: Brenie Dacumos

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 8 of 15
 Q - Yes, madam witness. But whom are you directing those words?
A - None, sir.

Q - Your are not talking to anybody?

A - None, sir.

Q - So your were talking prior to the incident at 10:00 o’clock in the

evening of August 15, 2011? You were just talking alone?
A - Yes, sir.

Q - You mentioned of a weapon in your judicial affidavit. Is that

weapon recovered?
A - No, sir.

From the foregoing, Brenie Dacumos admitted that her family indeed had
altercations with them previously, but it is very evident that Brenie was trying not
to tell the court about the same and opted to saying unresponsive answers when
asked about the nature of their altercations. It is therefore highly doubtful then that
such altercations between them would really amount to enough provocation that
will make Doroteo Fontanilla harbor the intent to kill Brenie and Brigida, for that
matter.

In other words, when there is equilibrium in the evidence presented by both

sides, the CONSTITUTIONAL PRESUMPTION OF INNOCENCE should tilt the
balance of the scale in favor of the accused, for in such a situation, the offense has
not been proven beyond reasonable doubt, which is the quantum of evidence
required to convict an accused. Suspicion alone is insufficient, the required
quantum of evidence being proof beyond reasonable doubt.17,18
Only by proof beyond reasonable doubt, which requires moral certainty, may
the presumption of innocence be overcome.19 Moral certainty has been defined as
"a certainty that convinces and satisfies the reason and conscience of those who are
to act upon it".20 Absent the moral certainty that accused-appellant had intent to kill
or harm the victims, acquittal perforce follows. Proof beyond reasonable doubt is
needed to overcome the presumption of Innocence.21
“Misappreciation and misinterpretation of prosecution
evidence resulting in grave miscarriage of justice”
The Court in its appreciation and interpretation of the evidence presented by
the private complainants’ erred by misappreciating and misinterpreting the
circumstances attendant at the time of the alleged attack to Brenie.

The Court a quo, stated in its assailed decision that when Brenie’s mother
(Brigida) heard the commotion, she went out of her room and upon seeing her
daughter, Brenie being attacked by the accused, she tried to stop the accused and
the accused went on and turned his ire on her. And while the alleged attack is
17 PP v. Gargar, 300 SCRA 542 (1998)
18 PP v. Cubcubin, Jr., G.R. No. 136267, July 10, 2001
19 PP v. Custodio, 47 SCRA 289 (1972)
20 PP v. Lavarias, 23 SCRA 1301 (1967)
21 PP v. Reyes, 60 SCRA 126 (1974)

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 9 of 15
taking place between herein accused, Brenie and Brigida, Isabelo (Brigida’s
husband and father of Brenie) came out to help and a certain Louie Glenn
Dacumos also arrived and came to help and were also alleged to have been hacked
by the accused in their effort to prevent him from consummating the crime, which
they actually did with their arrival and effectively prevented him from inflicting
further harm to Brenie and Brigida; thus, granting arguendo that the narration of
events were all true, the accused therefore, never passed the subjective phase in
the commission of the crime (emphasis supplied).

Moreover, Brigida was very inconsistent with her testimony at the witness
stand. On pages 5 - 6 of the TSN dated September 9, 2014 22, the following are
being reproduced to wit:

Q - You said that you heard the commotion when you were inside the
room?
A - We did not hear any commotion, your honor.

Q - I thought you mentioned in your judicial affidavit that you were in

your room and the follow up question to that when you said that you were in
your room, you heard a commotion in your house?
A - None, your honor.

Q - So where were you when you heard the commotion?

A - We were at home, your honor.

Q - What part of the house?

A - Inside, your honor, but I went outside the house.

Q - You were already outside of your room when you heard the
commotion?
A - Yes, your honor.

Q - Now, you mentioned as now that you heard a commotion when you
were already outside your room, in your judicial affidavit you said you saw the
accused Doroteo Fontanilla hacking your daughter, Bernie Dacumos?
A - Yes, your honor.

Q - What exactly did you see Doroteo Fontanilla was doing to your
daughter Bernie Dacumos?
A - When my daughter was about to go to the room, Doroteo hacked
her, your honor.

Q - You mean Doroteo Fontanilla was already inside the house?

A - Yes, your honor.

Q - What is he doing inside the house?

A - He is standing, your honor.

22 TSN dated September 9, 2014, re: Brigida Dacumos

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 10 of 15
 From the foregoing narration by Brigida Dacumos, it is very evident that she
was telling the court three (3) versions of the story; one, that the incident took
place inside their house; and two, that the incident took place outside their house,
which corroborates herein Accused-appellant’s version of the incident taking place
outside the house of the private complainants. She also gave conflicting versions as
to what she saw when she allegedly went out of her room; first, she saw Doroteo
Fontanilla already hacking her daughter; second, she saw her daughter about to go
to the room, then Doroteo hacked her; and third, she saw Doroteo inside the house
and was just standing.

Furthermore, she was also very inconsistent when she said that she heard
nothing of the commotion while she was inside her room and that she only heard
the commotion when she was outside her room. This fact alone will corroborate
Accused-appellant version of the story that indeed the incident took place outside
the victims’ house and not inside their house as they claimed to be.

“ Accused-appellant never passed the subjective phase

in the commission of the crime”

Justice Moreland, speaking for the Court, distinguished an attempted from a

frustrated felony. He said that to be an attempted crime, the purpose of the offender
must be thwarted by a foreign force or agency which intervenes and compels him
to stop prior to the moment when he has performed all the acts which should
produce the crime as a consequence, which act is his intention to perform.23

The subjective phase in the commission of a crime is that portion of the acts
constituting the crime included between the act which begins the commission of
the crime and the last act performed by the offender which, with prior acts, should
result in the consummated crime. Thereafter, the phase is objective.

In case of an attempted crime, the offender never passes the subjective phase in
the commission of the crime. The offender does not arrive at the point of
performing all of the acts of execution which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary desistance.

On the other hand, a crime is frustrated when the offender has performed all
the acts of execution which should result in the consummation of the crime. The
offender has passed the subjective phase in the commission of the crime.
Subjectively, the crime is complete. Nothing interrupted the offender while passing
through the subjective phase. He did all that was necessary to consummate the
crime; however, the crime is not consummated by reason of the intervention of
causes independent of the will of the offender.

In homicide cases, the offender is said to have performed all the acts of
execution if the wound inflicted on the victim/s is mortal and could cause the death
of the victim barring medical intervention or attendance.24
23 Ibid. 1, Attempted Crime
24 People v. Sumalpong, 348 Phil. 501

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 11 of 15
 In the case at bar, the Accused-appellant never passed the subjective phase
in the commission of the crime. The offender did not arrive at the point of
performing all of the acts of execution which should produce the crime. He
was stopped short of that point by some cause apart from his voluntary
desistance (emphasis supplied).

As such, herein accused failed to perform all the acts of execution, because
Brigida, then Isabelo and Louie arrived and came to the aid of the victim/s and
Accused-appellant, Doroteo was forced to stop and scamper away; thus, he did not
voluntarily desist from hacking Brenie and Brigida, but he had to stop when
Isabelo and Louie Glenn came and rushed to help Brenie and Brigida, while at the
same time attacking him with their bolos. Thus, the subjective phase of the crime
had not been completed (emphasis supplied).

The case of herein Accused-appellant finds analogous standing as in the case of

Colinares25, wherein petitioner therein raised as sole issue the correctness of the
penalty imposed and claimed that the evidence presented warranted only a
conviction for the lesser offense and therefore may still be allowed to apply for
probation even if he has filed a notice of appeal.

Accordingly, the crime of attempted homicide following Article 51 of the

Revised Penal Code, as amended, provides that the imposable penalty for an
attempted crime shall be lower by two degrees than that prescribed by law for the
consummated felony26 thus would have entitled herein Accused-appellant for the
benefit of probation; and considering also that he is not one of those disqualified
under the law pursuant to PD 968, Section 927 and hereto reproduced as follows:

“xxx

Section 9. Disqualified Offenders. - The benefits of this Decree shall not be

extended to those:

a) Sentenced to serve a maximum term of imprisonment of more than six

(6) years (As amended by PD 1990);

b) Convicted of subversion or any crime against national security or the

public order (As amended by PD 1990);

c) Who have previously been convicted by a final judgment of an offense

punished by imprisonment of not less than one month and one day
and/or a fine of not less than two hundred pesos;

d) Who have been once on probation under the provisions of this Decree
(Introduced amendment by BP Blg. 76); and

25 Colinares v. People, G.R. 182748, December 13, 2011

26 Article 51, Revised Penal Code
27 PD 968 (Probation Law), Section 9 (c)

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 12 of 15
 e) Who are already serving sentence at the time the substantive provisions
of this Decree became applicable pursuant to Section 33 hereof (As
amended by PD 1990).

xxx”.

As in Colinares case, herein Accused-appellant may still be allowed to apply

for probation even if he has filed a notice of appeal, since he has categorically
stated in his Motion for Reconsideration that such appeal is limited on the
following grounds;

“ The appeal is merely intended for the correction of the penalty imposed by
the lower court, which when corrected would entitle the accused to apply for
probation; and

The appeal is merely intended to review the crime for which the accused was
convicted and that the accused should only be liable to the lesser offense which
is necessarily included in the crime for which he was originally convicted and
the proper penalty imposable is within the probationable period”28

ACCUSED-APPELLANT does not seek exoneration and to reiterate, does

not seek reversal of his conviction but only that it be for the lesser offense of
serious physical injury or attempted homicide. He further contends that it is
not the gravity of the wounds alone which determines whether a felony is
attempted or frustrated, but whether the assailant had passed the subjective
phase in the commission of the offense; thus, in this case the lesser offense of
attempted homicide under Article 249 of the Revised Penal Code could be had
instead of the crime charged (emphasis supplied).

Moreover, in the same vein of contention, the intent to kill attributed to

herein Accused-appellant was never proven by prosecution evidence beyond
reasonable doubt; thus, in the alternative the lesser offense of serious physical
injuries under Article 263 (3) of the Revised Penal Code could be had instead
of the crime charged (emphasis supplied).

Herein Accused-appellant prays for the Honorable Court to favorably consider

this APPEAL for the lesser offense (e.g. serious physical injury 29 or attempted
homicide30) as he would like to take the opportunity for reformation under the
provisions of our Probation Law which might be less probable if he were to serve a
prison sentence, more so, he is already 56 years old and with the recent death of his
wife, he is alone and going through life with the uncertainty of what the future lies
ahead for him.

28 Mustapha M. Dimakuta v. PP, G.R. No. 206513, October 20, 2015

29 Article 263 (3), Revised Penal Code
30 Article 249, Revised Penal Code

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 13 of 15
 As for damages31, herein Accused-appellant submits to the original decision of
the Honorable Court dated September 20, 2018 as provided for in the last
paragraph of page 4 and second and third paragraphs of page 5 of the same.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that the

judgment by the Court a quo be SET ASIDE and a new one be rendered
CONVICTING herein Accused-appellant only to a LESSER OFFENSE OF
SERIOUS PHYSICAL INJURIES based on the argument that the intent to kill was
never proven beyond reasonable doubt; or in the alternative, ATTEMPTED
HOMICIDE based on the argument that herein Accused-appellant has not passed
the subjective phase of the crime as discussed from the foregoing.

Other reliefs just and equitable under the premises are likewise prayed for.

San Fernando City, La Union, ___________________. .

MOSUELA-GONZALES & ASSOCIATES LAW OFFICES

Counsel for the Accused-Appellant
NORTESURLU Bldg., Purok 3, Sevilla
San Fernando City, 2500 La Union

By:

JAIME C. GONZALES, JR.

Roll No. 68552, May 29, 2017
IBP O.R. No. 098528, January 4, 2019 (LU Chapter)
PTR No. LU 3411669A, January 4, 2019
MCLE Comp. No. VI-0007263, valid until April 14, 2022

VERIFICATION
I, DOROTEO FONTANILLA, of legal age, Filipino citizen, widower and a
resident of and with postal address at Brgy. Casilagan, San Juan, La Union, after
being sworn to under oath hereby depose and say:

That I am the Accused-appellant in the above entitled case;

That I caused the preparation of the foregoing; that I have read the contents
thereof, and the same are true and correct of my own personal knowledge and
based on authentic records and documents;

31 Ibid.5, Damages p.5

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 14 of 15
 IN WITNESS WHEREOF, I have hereunto set my hand this
_______________, 2019 in ____________________, Philippines.

DOROTEO FONTANILLA
Affiant

SUBSCRIBED AND SWORN to before me on __ day of ____________, 2019

in ______________________, Philippines, the affiant appearing in person before
me on a single occasion, personally known to me and identifiable by me thru
competent evidence of identity which is his COMELEC ID VIN 3316-0040A-
D0662 DCF-10000.

____________________________
Notary Public

COPY FURNISHED:

(By registered mail with return card due to the distance of his office address in
Makati City and due to the urgency of filing the same).

ATTY. JAIME C. GONZALES, JR.

OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo St., Legaspi Village
1229 Makati City

APPELLANT’S BRIEF ~ DOROTEO FONTANILLA; RE: CRIMINAL CASE NOS. 9237 & 9238 Page 15 of 15