Colinares v. People (2011): Probation After a Lower Penalty on Appeal

At around 7:00 in the evening of June 25, 2000, in Camarines Sur, the victim and a friend went out to buy cigarettes. According to the prosecution witnesses, Arnel Colinares came from behind and struck the victim twice on the head with a big stone, knocking him out. Arnel also hit a man who tried to help him. The victim was treated in a hospital and went home.

Arnel said he acted in self-defense. He testified that the victim and two companions, all drunk, pushed and boxed him, and that the victim tried to stab him. He said he picked up a stone and hit back. Arnel voluntarily surrendered to the police in September 2000.

In 2005, the Regional Trial Court of San Jose, Camarines Sur convicted Arnel of frustrated homicide. It sentenced him to two years and four months of prision correccional as minimum, to six years and one day of prision mayor as maximum. Since the Probation Law allows probation only when the maximum term is six years or less, Arnel could not apply. He appealed, and the Court of Appeals affirmed his conviction. He then went to the Supreme Court.

The Court decided three questions:

1. Did Arnel act in self-defense?
2. If not, was the crime frustrated homicide or only attempted homicide?
3. If the penalty is lowered to one that allows probation, may Arnel still apply for probation even though he appealed?

The Supreme Court partly granted the petition. It found Arnel guilty of attempted homicide and sentenced him to an indeterminate penalty of four months of arresto mayor as minimum, to two years and four months of prision correccional as maximum. It ordered him to pay the victim ₱20,000 moral damages. The judgment was without prejudice to Arnel applying for probation within 15 days from notice that the record of the case had been remanded to the trial court for execution.

One: no self-defense. Under Article 11, self-defense needs unlawful aggression by the victim, reasonable necessity of the means used, and no sufficient provocation by the person defending himself. The Court said unlawful aggression means an actual, sudden and unexpected attack, or an imminent danger of one. "A mere threatening or intimidating attitude is not enough." Only Arnel said he was attacked first. No one backed up his story, he presented no medical certificate of his own injuries, and three witnesses said he was the aggressor. Without unlawful aggression, the other two requirements had nothing to stand on.

Two: attempted, not frustrated. The size of the stone and the blows to the head showed intent to kill. But the crime is frustrated only if the victim would have died without timely medical help. The victim's wounds needed only stitches and were expected to heal in seven or eight days, and the doctor could not say they were fatal. So the crime was attempted homicide. The Court also credited Arnel with the mitigating circumstance of voluntary surrender.

Three: probation may be applied for. The Court accepted that "Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed". But it found that fairness required a different result:

• Arnel did not appeal from a penalty that allowed probation. The trial court's wrong judgment never gave him the choice between appeal and probation.
• There were two judgments of conviction: the trial court's, now set aside, and the Supreme Court's for a lesser crime. The Supreme Court's judgment was, in a real sense, the first to impose a probationable penalty.
• He should not pay for the trial court's error. The Court used the Filipino saying "Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw" (the horse errs, the carabao gets the whip).
• Arnel has only the right to apply. It is still up to the trial judge to decide whether to grant probation, taking into account all the circumstances of his case.

The Court distinguished an earlier case in which the accused had a probationable penalty but chose to appeal anyway, hoping for an acquittal. An accused who has that choice and appeals still loses the chance to apply for probation.

Several Justices disagreed with the majority on the probation point and wrote or joined concurring and dissenting opinions.

When an appeal lowers a conviction from a penalty that does not allow probation to one that does, the accused who appealed may apply for probation on remand of the case to the trial court, because he never had the choice between appeal and probation; the trial court still decides whether to grant it.

The Probation Law says no application for probation may be entertained or granted once the accused has perfected an appeal. Colinares allowed an exception for an accused who was convicted of the wrong, more serious crime, and whose correct, probationable penalty came only on appeal.

The same rule now appears in the law. Republic Act No. 10707, approved in November 2015, amended Section 4 of the Probation Law. When a judgment imposing a non-probationable penalty is appealed or reviewed and is modified to impose a probationable penalty, the defendant may apply for probation based on the modified decision before it becomes final. The application is filed in the trial court that rendered the original judgment, or where the case has since been re-raffled. The accused loses this benefit if he seeks a review of the modified decision that already imposes a probationable penalty.

Made-up illustration: Rico is convicted by the trial court of a crime with a maximum term of eight years, so he cannot apply for probation. He appeals, arguing that he committed only a lesser crime. The appeal court agrees and lowers the maximum to three years. Under the current rule, Rico may apply for probation based on the modified decision before it becomes final, if he has no other disqualification. If he instead asks a higher court to review the modified decision, he loses that chance. The trial court still decides whether to grant probation.