Republic Of The Philippines, G.r. No. 166676

1. Republic vs. Cagandahan REPUBLIC OF THE PHILIPPINES, Petitioner,

- versus -

JENNIFER B. CAGANDAHAN, Respondent.

thus afflicted possess both male and female characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in her early years G.R. No. 166676 and at age six, underwent an ultrasound where it was discovered that she has Present: small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual QUISUMBING, J., Chairperson, development. She then alleged that for all interests and appearances as well CARPIO MORALES, TINGA, as in mind and emotion, she has become a male person. Thus, she prayed VELASCO, JR., and that her birth certificate be corrected such that her gender be changed from BRION, JJ. female to male and her first name be changed from Jennifer to Jeff. Promulgated: September 12, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and seeking a reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the following changes of entries in Cagandahans birth certificate: (1) the name Jennifer Cagandahan changed to Jeff Cagandahan and (2) gender from female to male. The facts are as follows.

The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was posted in conspicuous places by the sheriff of the court. The Solicitor General entered his appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf. To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a medical certificate stating that respondents condition is known as CAH. He explained that genetically respondent is female but because her body secretes male hormones, her female organs did not develop normally and she has two sex organs female and male. He testified that this condition is very rare, that respondents uterus is not fully developed because of lack of female hormones, and that she has no monthly period. He further testified that respondents condition is permanent and recommended the change of gender because respondent has made up her mind, adjusted to her chosen role as male, and the gender change would be advantageous to her.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth Certificate[2] before the RTC, Branch 33 of Siniloan, Laguna.

The RTC granted respondents petition in a Decision dated January 12, 2005 which reads:

In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons

The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs prayed [for]. Petitioner has adequately presented to the Court very clear and convincing proofs for the granting of his petition. It was medically proven that petitioners body produces male hormones, and first his body as well as his action and feelings

are that of a male. He has chosen to be male. He is a normal person and wants to be acknowledged and identified as a male. WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to make the following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of the prescribed fees: a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and b) MALE.

By changing the gender from female to

It is likewise ordered that petitioners school records, voters registry, baptismal certificate, and other pertinent records are hereby amended to conform with the foregoing corrected data. SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned ruling. The issues raised by petitioner are: THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT: I. THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN COMPLIED WITH; AND,

Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth certificate of respondent to change her sex or gender, from female to male, on the ground of her medical condition known as CAH, and her name from Jennifer to Jeff, under Rules 103 and 108 of the Rules of Court. The OSG contends that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because while the local civil registrar is an indispensable party in a petition for cancellation or correction of entries under Section 3, Rule 108 of the Rules of Court, respondents petition before the court a quo did not implead the local civil registrar.[5] The OSG further contends respondents petition is fatally defective since it failed to state that respondent is a bona fide resident of the province where the petition was filed for at least three (3) years prior to the date of such filing as mandated under Section 2(b), Rule 103 of the Rules of Court.[6] The OSG argues that Rule 108 does not allow change of sex or gender in the birth certificate and respondents claimed medical condition known as CAH does not make her a male.[7] On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil Registrar was furnished a copy of the Petition, the Order to publish on December 16, 2003 and all pleadings, orders or processes in the course of the proceedings,[8] respondent is actually a male person and hence his birth certificate has to be corrected to reflect his true sex/gender,[9] change of sex or gender is allowed under Rule 108,[10] and respondent substantially complied with the requirements of Rules 103 and 108 of the Rules of Court.[11]

II. CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF SEX OR GENDER IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT MAKE HER A MALE.[4]

Rules 103 and 108 of the Rules of Court provide:

Rule 103 CHANGE OF NAME

SECTION 1. Venue. A person desiring to change his name shall present the petition to the Regional Trial Court of the province in which he resides, [or, in the City of Manila, to the Juvenile and Domestic Relations Court]. SEC. 2. Contents of petition. A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth: (a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing; (b) The cause for which the change of the petitioner's name is sought; (c) The name asked for. SEC. 3. Order for hearing. If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice. SEC. 4. Hearing. Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic. SEC. 5. Judgment. Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition. SEC. 6. Service of judgment. Judgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the court issuing the same is

situated, who shall forthwith enter the same in the civil register. Rule 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY SECTION 1. Who may file petition. Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province where the corresponding civil registry is located. SEC. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name. SEC. 3. Parties. When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. SEC. 5. Opposition. The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. SEC. 6. Expediting proceedings. The court in which the proceedings is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the

preservation of the rights of the parties pending such proceedings. SEC. 7. Order. After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.

The OSG argues that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because respondents petition did not implead the local civil registrar. Section 3, Rule 108 provides that the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceedings. Likewise, the local civil registrar is required to be made a party in a proceeding for the correction of name in the civil registry. He is an indispensable party without whom no final determination of the case can be had.[12] Unless all possible indispensable parties were duly notified of the proceedings, the same shall be considered as falling much too short of the requirements of the rules.[13] The corresponding petition should also implead as respondents the civil registrar and all other persons who may have or may claim to have any interest that would be affected thereby.[14] Respondent, however, invokes Section 6,[15] Rule 1 of the Rules of Court which states that courts shall construe the Rules liberally to promote their objectives of securing to the parties a just, speedy and inexpensive disposition of the matters brought before it. We agree that there is substantial compliance with Rule 108 when respondent furnished a copy of the petition to the local civil registrar. The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look to the statutes. In this connection, Article 412 of the Civil Code provides: ART. 412. No entry in a civil register shall be changed or corrected without a judicial order.

Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No. 9048[17] in so far as clerical or

typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order.In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies only to substantial changes and corrections in entries in the civil register.[18] Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.[19] The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code: ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. ART. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.[20] Respondent undisputedly has CAH. This condition causes the early or inappropriate appearance of male characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous genitalia often appearing more male than female; (2) normal internal structures of the female reproductive tract such as the ovaries, uterus and fallopian tubes; as the child

grows older, some features start to appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with CAH.

determine, based on medical testimony and scientific development showing the respondent to be other than female, then a change in the subjects birth certificate entry is in order.

conditions[21]

CAH is one of many that involve intersex anatomy. During the twentieth century, medicine adopted the term intersexuality to apply to human beings who cannot be classified as either male or female.[22] The term is now of widespread use. According to Wikipedia, intersexuality is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male and female sexes. Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals have been expected to conform to either a male or female gender role.[23] Since the rise of modern medical science in Western societies, some intersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble either male or female genitals.[24] More commonly, an intersex individual is considered as suffering from a disorder which is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the individual as neatly as possible into the category of either male or female. In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. It has been suggested that there is some middle ground between the sexes, a no-mans land for those individuals who are neither truly male nor truly female.[25] The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification. In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth certificate entry for gender. But if we

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. Respondent has female (XX) chromosomes. However, respondents body system naturally produces high levels of male hormones (androgen).As a result, respondent has ambiguous genitalia and the phenotypic features of a male. Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male.Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed. Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication,[26] to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondents development to reveal more fully his male characteristics. In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as ones sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not choosing to undergo treatment in

order to become or remain as a female. Neither will the Court force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this gender of the human species. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. In the absence of evidence that respondent is an incompetent[27] and in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondents position and his personal judgment of being a male. In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. In other words, we respect respondents congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. As for respondents change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow.[28] The trial courts grant of respondents change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondents change of name merely recognizes his preferred gender, we find merit in respondents change of name. Such a change will conform with the change of the entry in his birth certificate from female to male. WHEREFORE, the Republics petition is DENIED. The Decision dated January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.

2. People v. Aquino

[G.R. No. 128887. January 20, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDGARDO AQUINO y PUMAWAN @ "EDDIE AQUINO," accused-appellant. ULANDU DECISION DAVIDE, JR., C.J.: Accused-appellant Edgardo Aquino y Pumawan (hereafter EDGARDO) prays for the reversal of his conviction for murder decreed by the Regional Trial Court, Branch 75, Olongapo City, in its decision[1] of 30 January 1997 in Criminal Case No.56-96. The evidence for the prosecution is summarized by the Office of the Solicitor General (OSG) in the Appellee's Brief; thus:

Edgardo stepped inside their house, eager to vent his ire on Roselyn, intending to stab her. Roselyn's mother pulled her aside, shouting. Edgardo went for her mother who tried valiantly to evade his thrust as she was then carrying Roselyn's sick younger sister. Roselyn saw Edgardo repeatedly stab her mother in the latter's stomach and chest areas.... Out of fear, Roselyn managed to destroy their nipa wall and jumped out of their house. Despite her shouts for help, no help came (Ibid., pp. 6-7).Juris sc At about the same time also, Benjamin Costimiano, a purok leader, was in his house when he heard some kind of shouting or commotion. Being a purok leader, he went to the place of incident and saw the victim (tsn, August 15, 1996, p. 15). He heard the people there say that the culprit was Edgardo Aquino (Ibid.). He went after Edgardo and was able to catch up with him in the house of one Francisco Franco. Benjamin asked Edgardo (who was still armed with a knife at that time) to put down the knife and the latter gave him the knife (Ibid., pp. 16-17). Benjamin described the knife used as a double-bladed one, and when it was handed to him, the handle still had some blood on it (Ibid., p. 19).

On January 19, 1996, Roselyn Lampera, daughter of Valerio and Esmeralda Lampera was in their house, together with her mother, younger brother Daniel and younger sister (tsn, July 31, 1996, p. 3). Their house is like a small cubicle without any partitions, elevated from the ground by about 2 1/2 feet (Ibid., pp. 3-4).

Dr[]. Nancy Valdez, Medico-legal Officer III of the San Marcelino District Hospital, testified that she was the one who conducted the autopsy on the cadaver of the victim. She noted four (4) stab wounds at the xiphoid processes/chest area, two (2) of which were fatal as they penetrated the thoracic cavity, causing lacerations on the anterior portion of the superior lobe of the left lung (tsn, August 29, 1996, pp. 8-10).

In the morning of that fateful day, Roselyn's mother, Esmeralda, was in their house taking care of Roselyn's younger sister who was sick at the time (Ibid., p. 3). Her younger brother, on the other hand, was playing on the ground near their house (Ibid., p. 4). Appellant Edgardo Aquino (who was their neighbor) arrived, looking for their father. Both Roselyn and her mother informed Edgardo that Valerio, Roselyn's father, was in Olongapo (Ibid., p. 5).

Valerio Lampera, Esmeralda's husband, declared that the untimely death of Esmeralda caused him pain and compelled the family to incur expenses in the amount of P2,500.[2] Daniel Isaac, Esmeralda's 8-year-old son, was likewise psychologically and emotionally affected by the unexpected demise of his mother.[3] He cried on the witness stand when asked of the whereabouts of his mother. Misj uris

Unsatisfied with their answer, Edgardo (who was near the door at the time) peeped in their house and when he did not see Valerio, pulled out his knife. Initially, he tried to stab Roselyn's younger brother. When Roselyn and her mother saw this, they rushed towards the younger boy in an attempt to protect him (Ibid.). When Edgardo saw their reaction,

EDGARDO had another story to tell. According to him, Esmeralda's husband was his business partner in the sale of fish. In the evening of 19 January 1996, he went to the house of the Lamperas to get his capital for the business. He saw Roselyn standing by the stairs of the house and asked her about the whereabouts of her father Valerio. When she informed him that Valerio was not there, he left for the store of Francisco Franco. On his way to the store, he heard shouts coming from the Lampera's house, which he mistook to be just another ordinary fight. He proceeded to Franco's store. Then Benjamin

Costimiano, a purok leader, arrived at the store, carrying with him a knife which, according to him, was recovered from inside Esmeralda's house. Benjamin invited EDGARDO to go with him to the Police Department of Subic, Zambales. Upon arrival thereat Costimiano ordered the detention of EDGARDO allegedly because the latter was a suspect in the killing of Esmeralda. EDGARDO was detained for two months but was not investigated by the police. He could not remember having been brought to the office of the Provincial Prosecutor and having given a statement thereat. He insisted that he did not kill Esmeralda and that the knife presented by the prosecution was not taken from him. Besides, he had no reason to kill the wife of his business partner.[4] The trial court gave credence to the version of the prosecution. It thus found EDGARDO guilty beyond reasonable doubt of murder under Article 248 of the Revised Penal Code, as amended by Republic Act No.7659. It held that the killing was attended by the qualifying circumstance of treachery, since the deceased was carrying a sick child when suddenly attacked. It appreciated in his favor the mitigating circumstance of intoxication based on the testimony of EDGARDO that he drank liquor on that fateful day while fishing at sea, which was corroborated by Roselyn's testimony that EDGARDO had red eyes. This circumstance was, however, offset by the aggravating circumstance of dwelling. Since there was no other modifying circumstance established, the trial court sentenced EDGARDO to suffer the penalty of reclusion perpetua and to pay the heirs of the deceased the amounts of P50,000 as indemnity; P50,000 as moral damages; P30,000 as exemplary damages; and P2,500 as actual damages. EDGARDO seasonably appealed to us. In his Appellant's Brief, he contends that the trial court erred in (a) considering treachery when the same was inexistent and (b) convicting him of murder qualified by treachery; and that it also overlooked material facts of substance which if considered would be sufficient to acquit him of the crime charged. Jj lex EDGARDO argues that no treachery was proved. First, the victim was already forewarned of the danger that would befall her, since EDGARDO initially pointed a knife at her young son, then tried to stab her daughter but missed. Besides, the attack was frontal and expected. Treachery did not automatically attach just because the victim was a woman and was holding a child. Second, one of the requisites of treachery, namely that "the means of execution was deliberately and consciously adopted," was absent because the stabbing spree was made at the spur of the moment when EDGARDO was enraged with passion and obfuscation or was under the influence of a sudden attack of "temporary insanity." Third, to appreciate treachery, the accused must be shown to have made some preparations to kill the victim. EDGARDO was in the victim's house with a legitimate purpose, i:e., to collect his share of the

proceeds of the sale of the night's catch of fish in the amount of P640; there was no murder in his heart at the precise moment. Further, EDGARDO claims that from his warrantless arrest to the custodial interrogation, he was denied his constitutional rights to remain silent and to have an effective counsel. In the Appellee's Brief, the OSG recommends that the judgment appealed from be affirmed in toto. It agrees with the trial court that there was treachery in view of the sudden and unexpected attack upon the unarmed victim, who had not committed the slightest provocation and who was totally unaware of EDGARDO's murderous designs. Neither the victim nor her children anticipated the attack. EDGARDO did not give any warning that he was about to start a stabbing spree. The victim, then carrying a sick child, never had the chance to defend herself or to retaliate. All that she managed to do was to try to evade EDGARDO's knife blows. Anent the third assigned error, the OSG argues that "temporary insanity" is not recognized in this jurisdiction and that mere abnormality of the mental faculties will not exclude imputability.[5] In any case, EDGARDO had the burden of proving his alleged "temporary insanity," as it is a basic principle in our rules on evidence that he who alleges a fact must prove the truth thereof. However, he did not raise this argument below, and it is only now that he belatedly raises it. New miso In light of the positive identification by a credible eyewitness of EDGARDO as the perpetrator of the crime, his self-serving denial is worthless. There is no shred of doubt as to his culpability for the death of Esmeralda. We do not, however, agree with the trial court that treachery attended the commission of the crime. For treachery to qualify the killing to murder, the following requisites must concur: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the deliberate and conscious adoption of the means of execution.[6] In this case, the victim, Esmeralda, was forewarned of the impending attack on her, since it was preceded by EDGARDO's attempts to attack her son and daughter. It cannot be said that she was in no position to defend herself; for, in fact, she succeeded in repelling appellant's aggression against her children. When EDGARDO turned to her, she "tried to evade the thrust" causing her 6year-old child whom she was carrying to be thrown away.[7] Furthermore, there is no sufficient evidence that the appellant deliberately and consciously adopted the means of execution employed by him. What is apparent is that the killing was done impulsively or on the spur of the moment.

Anent EDGARDO's claim of the mitigating circumstance of passion or obfuscation, the same is bereft of merit because his acts did not result from an impulse arising from lawful sentiments but from a spirit of lawlessness.[8] Neither are we persuaded by EDGARDO's plea of "temporary insanity." As the OSG aptly stated, "temporary insanity" is not recognized in this jurisdiction. Insanity, under Article 12 of the Revised Penal Code, connotes that the accused must have been deprived completely of reason and freedom of the will at the time of the commission of the crime,[9] or that he must have acted without the least discernment. Mere abnormality of the accused' mental faculties does not exclude imputability.[10] Moreover, EDGARDO was unable to substantiate his claim. The law presumes every man to be sane. If the accused interposes the defense of mental incapacity, the burden of establishing such fact rests upon him.[11] Insanity must be proved by clear and positive evidence.[12] Finally, EDGARDO did not raise this argument below, but only now, obviously as a delayed afterthought. Acct mis We disagree with the trial court in appreciating in appellant's favor the mitigating circumstance of intoxication. EDGARDO declared that he drank liquor on the day of the incident in question,[13] and the trial court held that his intoxication was corroborated by Roselyn's testimony that EDGARDO's eyes were "red" when she saw him. For intoxication to be mitigating, the following conditions must be present: (1) the same is not habitual or is not subsequent to the plan of the commission of a felony; otherwise, it is aggravating if it is habitual and intentional; and (2) the consumption of alcoholic drinks was in such quantity as to blur the accused's reason and deprive him of a certain degree of control.[14] In this case, EDGARDO was unable to prove both requisites. Nevertheless, we appreciate in EDGARDO's favor the mitigating circumstance of voluntary surrender. Immediately after the incident, when purok leader Benjamin Costimiano followed him in the house of Francisco Franco, EDGARDO voluntarily gave the knife to Franco and went with the latter to the Police Headquarters where he was forthwith detained. The information against him was filed much later. The trial court correctly considered the existence of the generic aggravating circumstance of dwelling, since the crime was committed inside the house of the victim, who had not given any provocation.[15] We do not find merit in EDGARDO's claim that he was arrested without a warrant, was subjected to custodial interrogation without the assistance of a counsel, and was denied his right to remain silent and to have an effective counsel. In the first place, there is no clear evidence that he was arrested. On the contrary, he voluntarily turned over his knife to purok leader Costimiano

and went with the latter to the Police Department, for which reason we even appreciate in his favor the mitigating circumstance of voluntary surrender. Second, the records do not disclose that a custodial interrogation of EDGARDO was made, although a preliminary investigation was conducted by Prosecutor Floresta.[16] Accordingly, since the killing was not attended by treachery or any other qualifying circumstance, EDGARDO should be held guilty of homicide only, which is punishable by reclusion temporal under Article 249 of the Revised Penal Code. The generic aggravating circumstance of dwelling having been offset by the mitigating circumstance of voluntary surrender and there being no other modifying circumstance, the imposable penalty is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, EDGARDO should be sentenced to suffer an indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as minimum. Mis act The awards of P50,000 as moral damages and P2,500 as actual damages for burial expenses incurred by the family of the victim are proper, as they were duly proved.[17] So is the award of exemplary damages, the crime having been committed with one aggravating circumstance.[18] WHEREFORE, the challenged decision of Branch 75 of the Regional Trial Court of Olongapo City in Criminal Case No. 56-96 is MODIFIED. As modified, accused-appellant EDGARDO AQUINO y PUMAWAN is found guilty beyond reasonable doubt, as principal, of the crime of homicide, defined and penalized under Article 249 of the Revised Penal Code, and is hereby sentenced to suffer an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. The awards of P50,000 as indemnity, P50,000 as moral damages, P30,000 as exemplary damages, and P2,500 as actual damages stand. Costs against accused-appellant. SO ORDERED .

As manifestations of respondent’s alleged psychological incapacity, petitioner claimed that respondent persistently lied about herself, the people around her, her occupation, income, educational attainment and other events or things, 9 to wit:

3. Antonio v. Reyes

G.R. No. 155800

March 10, 2006

LEONILO vs. MARIE IVONNE F. REYES, Respondent.

ANTONIO Petitioner,

DECISION TINGA, J.: Statistics never lie, but lovers often do, quipped a sage. This sad truth has unsettled many a love transformed into matrimony. Any sort of deception between spouses, no matter the gravity, is always disquieting. Deceit to the depth and breadth unveiled in the following pages, dark and irrational as in the modern noir tale, dims any trace of certitude on the guilty spouse’s capability to fulfill the marital obligations even more. The Petition for Review on Certiorari assails the Decision1 and Resolution2 of the Court of Appeals dated 29 November 2001 and 24 October 2002. The Court of Appeals had reversed the judgment3 of the Regional Trial Court (RTC) of Makati declaring the marriage of Leonilo N. Antonio (petitioner) and Marie Ivonne F. Reyes (respondent), null and void. After careful consideration, we reverse and affirm instead the trial court. Antecedent Facts Petitioner and respondent met in August 1989 when petitioner was 26 years old and respondent was 36 years of age. Barely a year after their first meeting, they got married before a minister of the Gospel4 at the Manila City Hall, and through a subsequent church wedding5 at the Sta. Rosa de Lima Parish, Bagong Ilog, Pasig, Metro Manila on 6 December 1990.6 Out of their union, a child was born on 19 April 1991, who sadly died five (5) months later. On 8 March 1993,7 petitioner filed a petition to have his marriage to respondent declared null and void. He anchored his petition for nullity on Article 36 of the Family Code alleging that respondent was psychologically incapacitated to comply with the essential obligations of marriage. He asserted that respondent’s incapacity existed at the time their marriage was celebrated and still subsists up to the present.8

(1) She concealed the fact that she previously gave birth to an illegitimate son,10 and instead introduced the boy to petitioner as the adopted child of her family. She only confessed the truth about the boy’s parentage when petitioner learned about it from other sources after their marriage.11 (2) She fabricated a story that her brother-in-law, Edwin David, attempted to rape and kill her when in fact, no such incident occurred.12 (3) She misrepresented herself as a psychiatrist to her obstetrician, Dr. Consuelo Gardiner, and told some of her friends that she graduated with a degree in psychology, when she was neither.13 (4) She claimed to be a singer or a free-lance voice talent affiliated with Blackgold Recording Company (Blackgold); yet, not a single member of her family ever witnessed her alleged singing activities with the group. In the same vein, she postulated that a luncheon show was held at the Philippine Village Hotel in her honor and even presented an invitation to that effect14 but petitioner discovered per certification by the Director of Sales of said hotel that no such occasion had taken place.15 (5) She invented friends named Babes Santos and Via Marquez, and under those names, sent lengthy letters to petitioner claiming to be from Blackgold and touting her as the "number one moneymaker" in the commercial industry worth P2 million.16 Petitioner later found out that respondent herself was the one who wrote and sent the letters to him when she admitted the truth in one of their quarrels.17 He likewise realized that Babes Santos and Via Marquez were only figments of her imagination when he discovered they were not known in or connected with Blackgold.18 (6) She represented herself as a person of greater means, thus, she altered her payslip to make it appear that she earned a higher income. She bought a sala set from a public market but told petitioner that she acquired it from a famous furniture dealer.19 She spent lavishly on unnecessary items and ended up borrowing money from other people on false pretexts.20 (7) She exhibited insecurities and jealousies over him to the extent of calling up his officemates to monitor his whereabouts. When he could no longer take her unusual behavior, he separated from her in August 1991. He tried to attempt a reconciliation but since her behavior did not change, he finally left her for good in November 1991.21

In support of his petition, petitioner presented Dr. Dante Herrera Abcede (Dr. Abcede), a psychiatrist, and Dr. Arnulfo V. Lopez (Dr. Lopez), a clinical psychologist, who stated, based on the tests they conducted, that petitioner was essentially a normal, introspective, shy and conservative type of person. On the other hand, they observed that respondent’s persistent and constant lying to petitioner was abnormal or pathological. It undermined the basic relationship that should be based on love, trust and respect.22 They further asserted that respondent’s extreme jealousy was also pathological. It reached the point of paranoia since there was no actual basis for her to suspect that petitioner was having an affair with another woman. They concluded based on the foregoing that respondent was psychologically incapacitated to perform her essential marital obligations.23 In opposing the petition, respondent claimed that she performed her marital obligations by attending to all the needs of her husband. She asserted that there was no truth to the allegation that she fabricated stories, told lies and invented personalities.24 She presented her version, thus: (1) She concealed her child by another man from petitioner because she was afraid of losing her husband.25 (2) She told petitioner about David’s attempt to rape and kill her because she surmised such intent from David’s act of touching her back and ogling her from head to foot.26 (3) She was actually a BS Banking and Finance graduate and had been teaching psychology at the Pasig Catholic School for two (2) years.27 (4) She was a free-lance voice talent of Aris de las Alas, an executive producer of Channel 9 and she had done three (3) commercials with McCann Erickson for the advertisement of Coca-cola, Johnson & Johnson, and Traders Royal Bank. She told petitioner she was a Blackgold recording artist although she was not under contract with the company, yet she reported to the Blackgold office after office hours. She claimed that a luncheon show was indeed held in her honor at the Philippine Village Hotel on 8 December 1979.28 (5) She vowed that the letters sent to petitioner were not written by her and the writers thereof were not fictitious. Bea Marquez Recto of the Recto political clan was a resident of the United States while Babes Santos was employed with Saniwares.29

(6) She admitted that she called up an officemate of her husband but averred that she merely asked the latter in a diplomatic matter if she was the one asking for chocolates from petitioner, and not to monitor her husband’s whereabouts.30 (7) She belied the allegation that she spent lavishly as she supported almost ten people from her monthly budget of P7,000.00.31 In fine, respondent argued that apart from her non-disclosure of a child prior to their marriage, the other lies attributed to her by petitioner were mostly hearsay and unconvincing. Her stance was that the totality of the evidence presented is not sufficient for a finding of psychological incapacity on her part.32 In addition, respondent presented Dr. Antonio Efren Reyes (Dr. Reyes), a psychiatrist, to refute the allegations anent her psychological condition. Dr. Reyes testified that the series of tests conducted by his assistant,33 together with the screening procedures and the Comprehensive Psycho-Pathological Rating Scale (CPRS) he himself conducted, led him to conclude that respondent was not psychologically incapacitated to perform the essential marital obligations. He postulated that regressive behavior, gross neuroticism, psychotic tendencies, and poor control of impulses, which are signs that might point to the presence of disabling trends, were not elicited from respondent.34 In rebuttal, Dr. Lopez asseverated that there were flaws in the evaluation conducted by Dr. Reyes as (i) he was not the one who administered and interpreted respondent’s psychological evaluation, and (ii) he made use of only one instrument called CPRS which was not reliable because a good liar can fake the results of such test.35 After trial, the lower court gave credence to petitioner’s evidence and held that respondent’s propensity to lying about almost anything−her occupation, state of health, singing abilities and her income, among others−had been duly established. According to the trial court, respondent’s fantastic ability to invent and fabricate stories and personalities enabled her to live in a world of makebelieve. This made her psychologically incapacitated as it rendered her incapable of giving meaning and significance to her marriage.36 The trial court thus declared the marriage between petitioner and respondent null and void. Shortly before the trial court rendered its decision, the Metropolitan Tribunal of the Archdiocese of Manila annulled the Catholic marriage of the parties, on the ground of lack of due discretion on the part of the parties.37 During the pendency of the appeal before the Court of Appeals, the Metropolitan Tribunal’s ruling was affirmed with modification by both the National Appellate Matrimonial Tribunal, which held instead that only respondent was impaired by

a lack of due discretion.38 Subsequently, the decision of the National Appellate Matrimonial Tribunal was upheld by the Roman Rota of the Vatican.39

nullity under the proper circumstances. Molina did not foreclose the grant of a decree of nullity under Article 36, even as it raised the bar for its allowance.

Petitioner duly alerted the Court of Appeals of these rulings by the Catholic tribunals. Still, the appellate court reversed the RTC’s judgment. While conceding that respondent may not have been completely honest with petitioner, the Court of Appeals nevertheless held that the totality of the evidence presented was insufficient to establish respondent’s psychological incapacity. It declared that the requirements in the case of Republic v. Court of Appeals40 governing the application and interpretation of psychological incapacity had not been satisfied.

Legal Guides to Understanding Article 36

Taking exception to the appellate court’s pronouncement, petitioner elevated the case to this Court. He contends herein that the evidence conclusively establish respondent’s psychological incapacity. In considering the merit of this petition, the Court is heavily influenced by the credence accorded by the RTC to the factual allegations of petitioner.41 It is a settled principle of civil procedure that the conclusions of the trial court regarding the credibility of witnesses are entitled to great respect from the appellate courts because the trial court had an opportunity to observe the demeanor of witnesses while giving testimony which may indicate their candor or lack thereof.42 The Court is likewise guided by the fact that the Court of Appeals did not dispute the veracity of the evidence presented by petitioner. Instead, the appellate court concluded that such evidence was not sufficient to establish the psychological incapacity of respondent.43 Thus, the Court is impelled to accept the factual version of petitioner as the operative facts. Still, the crucial question remains as to whether the state of facts as presented by petitioner sufficiently meets the standards set for the declaration of nullity of a marriage under Article 36 of the Family Code. These standards were definitively laid down in the Court’s 1997 ruling in Republic v. Court of Appeals44 (also known as the Molina case45), and indeed the Court of Appeals cited the Molina guidelines in reversing the RTC in the case at bar.46 Since Molina was decided in 1997, the Supreme Court has yet to squarely affirm the declaration of nullity of marriage under Article 36 of the Family Code.47 In fact, even before Molina was handed down, there was only one case, Chi Ming Tsoi v. Court of Appeals,48 wherein the Court definitively concluded that a spouse was psychologically incapacitated under Article 36. This state of jurisprudential affairs may have led to the misperception that the remedy afforded by Article 36 of the Family Code is hollow, insofar as the Supreme Court is concerned.49 Yet what Molina and the succeeding cases did ordain was a set of guidelines which, while undoubtedly onerous on the petitioner seeking the declaration of nullity, still leave room for a decree of

Article 36 of the Family Code states that "[a] marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization."50 The concept of psychological incapacity as a ground for nullity of marriage is novel in our body of laws, although mental incapacity has long been recognized as a ground for the dissolution of a marriage. The Spanish Civil Code of 1889 prohibited from contracting marriage persons "who are not in the full enjoyment of their reason at the time of contracting marriage."51 Marriages with such persons were ordained as void,52 in the same class as marriages with underage parties and persons already married, among others. A party’s mental capacity was not a ground for divorce under the Divorce Law of 1917,53 but a marriage where "either party was of unsound mind" at the time of its celebration was cited as an "annullable marriage" under the Marriage Law of 1929.54 Divorce on the ground of a spouse’s incurable insanity was permitted under the divorce law enacted during the Japanese occupation.55 Upon the enactment of the Civil Code in 1950, a marriage contracted by a party of "unsound mind" was classified under Article 85 of the Civil Code as a voidable marriage.56 The mental capacity, or lack thereof, of the marrying spouse was not among the grounds for declaring a marriage void ab initio.57 Similarly, among the marriages classified as voidable under Article 45 (2) of the Family Code is one contracted by a party of unsound mind.58 Such cause for the annulment of marriage is recognized as a vice of consent, just like insanity impinges on consent freely given which is one of the essential requisites of a contract.59 The initial common consensus on psychological incapacity under Article 36 of the Family Code was that it did not constitute a specie of vice of consent. Justices Sempio-Diy and Caguioa, both members of the Family Code revision committee that drafted the Code, have opined that psychological incapacity is not a vice of consent, and conceded that the spouse may have given free and voluntary consent to a marriage but was nonetheless incapable of fulfilling such rights and obligations.60 Dr. Tolentino likewise stated in the 1990 edition of his commentaries on the Family Code that this "psychological incapacity to comply with the essential marital obligations does not affect the consent to the marriage."61

There were initial criticisms of this original understanding of Article 36 as phrased by the Family Code committee. Tolentino opined that "psychologically incapacity to comply would not be juridically different from physical incapacity of consummating the marriage, which makes the marriage only voidable under Article 45 (5) of the Civil Code x x x [and thus] should have been a cause for annulment of the marriage only."62 At the same time, Tolentino noted "[it] would be different if it were psychological incapacity to understand the essential marital obligations, because then this would amount to lack of consent to the marriage."63 These concerns though were answered, beginning with Santos v. Court of Appeals,64 wherein the Court, through Justice Vitug, acknowledged that "psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage."65 The notion that psychological incapacity pertains to the inability to understand the obligations of marriage, as opposed to a mere inability to comply with them, was further affirmed in the Molina66 case. Therein, the Court, through then Justice (now Chief Justice) Panganiban observed that "[t]he evidence [to establish psychological incapacity] must convince the court that the parties, or one of them, was mentally or psychically ill to such extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereto."67 Jurisprudence since then has recognized that psychological incapacity "is a malady so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume."68 It might seem that this present understanding of psychological incapacity deviates from the literal wording of Article 36, with its central phase reading "psychologically incapacitated to comply with the essential marital obligations of marriage."69 At the same time, it has been consistently recognized by this Court that the intent of the Family Code committee was to design the law as to allow some resiliency in its application, by avoiding specific examples that would limit the applicability of the provision under the principle of ejusdem generis. Rather, the preference of the revision committee was for "the judge to interpret the provision on a case-to-case basis, guided by experience, in the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law."70

We likewise observed in Republic v. Dagdag:71 Whether or not psychological incapacity exists in a given case calling for annulment of a marriage, depends crucially, more than in any field of the law, on the facts of the case. Each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts. In regard to psychological incapacity as a ground for annulment of marriage, it is trite to say that no case is on "all fours" with another case. The trial judge must take pains in examining the factual milieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court.72 The Court thus acknowledges that the definition of psychological incapacity, as intended by the revision committee, was not cast in intractable specifics. Judicial understanding of psychological incapacity may be informed by evolving standards, taking into account the particulars of each case, current trends in psychological and even canonical thought, and experience. It is under the auspices of the deliberate ambiguity of the framers that the Court has developed the Molina rules, which have been consistently applied since 1997. Molina has proven indubitably useful in providing a unitary framework that guides courts in adjudicating petitions for declaration of nullity under Article 36. At the same time, the Molina guidelines are not set in stone, the clear legislative intent mandating a case-to-case perception of each situation, and Molina itself arising from this evolutionary understanding of Article 36. There is no cause to disavow Molina at present, and indeed the disposition of this case shall rely primarily on that precedent. There is need though to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36. Of particular notice has been the citation of the Court, first in Santos then in Molina, of the considered opinion of canon law experts in the interpretation of psychological incapacity. This is but unavoidable, considering that the Family Code committee had bluntly acknowledged that the concept of psychological incapacity was derived from canon law,73 and as one member admitted, enacted as a solution to the problem of marriages already annulled by the Catholic Church but still existent under civil law.74 It would be disingenuous to disregard the influence of Catholic Church doctrine in the formulation and subsequent understanding of Article 36, and the Court has expressly acknowledged that interpretations given by the National Appellate Matrimonial Tribunal of the local Church, while not controlling or decisive, should be given great respect by our courts.75 Still, it must be emphasized that the Catholic Church is hardly the sole source of influence in the interpretation of Article 36. Even though the concept may have been derived from canon law, its incorporation into the Family Code and subsequent judicial interpretation occurred in wholly secular progression. Indeed, while Church thought on psychological incapacity is merely persuasive on the trial courts, judicial

decisions of this Court interpreting psychological incapacity are binding on lower courts.76 Now is also opportune time to comment on another common legal guide utilized in the adjudication of petitions for declaration of nullity under Article 36. All too frequently, this Court and lower courts, in denying petitions of the kind, have favorably cited Sections 1 and 2, Article XV of the Constitution, which respectively state that "[t]he State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total developmen[t]," and that "[m]arriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State." These provisions highlight the importance of the family and the constitutional protection accorded to the institution of marriage. But the Constitution itself does not establish the parameters of state protection to marriage as a social institution and the foundation of the family. It remains the province of the legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to protect it, based on whatever socio-political influences it deems proper, and subject of course to the qualification that such legislative enactment itself adheres to the Constitution and the Bill of Rights. This being the case, it also falls on the legislature to put into operation the constitutional provisions that protect marriage and the family. This has been accomplished at present through the enactment of the Family Code, which defines marriage and the family, spells out the corresponding legal effects, imposes the limitations that affect married and family life, as well as prescribes the grounds for declaration of nullity and those for legal separation. While it may appear that the judicial denial of a petition for declaration of nullity is reflective of the constitutional mandate to protect marriage, such action in fact merely enforces a statutory definition of marriage, not a constitutionally ordained decree of what marriage is. Indeed, if circumstances warrant, Sections 1 and 2 of Article XV need not be the only constitutional considerations to be taken into account in resolving a petition for declaration of nullity. Indeed, Article 36 of the Family Code, in classifying marriages contracted by a psychologically incapacitated person as a nullity, should be deemed as an implement of this constitutional protection of marriage. Given the avowed State interest in promoting marriage as the foundation of the family, which in turn serves as the foundation of the nation, there is a corresponding interest for the State to defend against marriages ill-equipped to promote family life. Void ab initio marriages under Article 36 do not further the initiatives of the State concerning marriage and family, as they promote wedlock among persons who, for reasons independent of their will, are not capacitated to understand or comply with the essential obligations of marriage. These are the legal premises that inform us as we decide the present petition.

Molina Guidelines As Applied in This Case As stated earlier, Molina established the guidelines presently recognized in the judicial disposition of petitions for nullity under Article 36. The Court has consistently applied Molina since its promulgation in 1997, and the guidelines therein operate as the general rules. They warrant citation in full: 1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected"’ by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. 2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological–not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. 3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do’s." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. 4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely

against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. 5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. 6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. 7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides: "The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature." Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideally—subject to our law on evidence—what is decreed as canonically invalid should also be decreed civilly void.77

Molina had provided for an additional requirement that the Solicitor General issue a certification stating his reasons for his agreement or opposition to the petition.78 This requirement however was dispensed with following the implementation of A.M. No. 02-11-10-SC, or the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages.79 Still, Article 48 of the Family Code mandates that the appearance of the prosecuting attorney or fiscal assigned be on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. Obviously, collusion is not an issue in this case, considering the consistent vigorous opposition of respondent to the petition for declaration of nullity. In any event, the fiscal’s participation in the hearings before the trial court is extant from the records of this case. As earlier noted, the factual findings of the RTC are now deemed binding on this Court, owing to the great weight accorded to the opinion of the primary trier of facts, and the refusal of the Court of Appeals to dispute the veracity of these facts. As such, it must be considered that respondent had consistently lied about many material aspects as to her character and personality. The question remains whether her pattern of fabrication sufficiently establishes her psychological incapacity, consistent with Article 36 and generally, the Molina guidelines. We find that the present case sufficiently satisfies the guidelines in Molina. First. Petitioner had sufficiently overcome his burden in proving the psychological incapacity of his spouse. Apart from his own testimony, he presented witnesses who corroborated his allegations on his wife’s behavior, and certifications from Blackgold Records and the Philippine Village Hotel Pavillon which disputed respondent’s claims pertinent to her alleged singing career. He also presented two (2) expert witnesses from the field of psychology who testified that the aberrant behavior of respondent was tantamount to psychological incapacity. In any event, both courts below considered petitioner’s evidence as credible enough. Even the appellate court acknowledged that respondent was not totally honest with petitioner.80 As in all civil matters, the petitioner in an action for declaration of nullity under Article 36 must be able to establish the cause of action with a preponderance of evidence. However, since the action cannot be considered as a non-public matter between private parties, but is impressed with State interest, the Family Code likewise requires the participation of the State, through the prosecuting attorney, fiscal, or Solicitor General, to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. Thus, even if the petitioner is able establish the psychological incapacity of respondent with preponderant evidence, any finding of collusion among the parties would necessarily negate such proofs.

Second. The root cause of respondent’s psychological incapacity has been medically or clinically identified, alleged in the complaint, sufficiently proven by experts, and clearly explained in the trial court’s decision. The initiatory complaint alleged that respondent, from the start, had exhibited unusual and abnormal behavior "of peren[n]ially telling lies, fabricating ridiculous stories, and inventing personalities and situations," of writing letters to petitioner using fictitious names, and of lying about her actual occupation, income, educational attainment, and family background, among others.81

ATTY. RAZ: (Back to the witness)

These allegations, initially characterized in generalities, were further linked to medical or clinical causes by expert witnesses from the field of psychology. Petitioner presented two (2) such witnesses in particular. Dr. Abcede, a psychiatrist who had headed the department of psychiatry of at least two (2) major hospitals,82 testified as follows:

A- If an individual is jealous enough to the point that he is paranoid, which means that there is no actual basis on her suspect (sic) that her husband is having an affair with a woman, if carried on to the extreme, then that is pathological. That is not abnormal. We all feel jealous, in the same way as we also lie every now and then; but everything that is carried out in extreme is abnormal or pathological. If there is no basis in reality to the fact that the husband is having an affair with another woman and if she persistently believes that the husband is having an affair with different women, then that is pathological and we call that paranoid jealousy.

WITNESS: Given that as a fact, which is only based on the affidavit provided to me, I can say that there are a couple of things that [are] terribly wrong with the standards. There are a couple of things that seems (sic) to be repeated over and over again in the affidavit. One of which is the persistent, constant and repeated lying of the "respondent"; which, I think, based on assessment of normal behavior of an individual, is abnormal or pathological. x x x ATTY. RAZ: (Back to the witness) Q- Would you say then, Mr. witness, that because of these actuations of the respondent she is then incapable of performing the basic obligations of her marriage? A- Well, persistent lying violates the respect that one owes towards another. The lack of concern, the lack of love towards the person, and it is also something that endangers human relationship. You see, relationship is based on communication between individuals and what we generally communicate are our thoughts and feelings. But then when one talks and expresse[s] their feelings, [you] are expected to tell the truth. And therefore, if you constantly lie, what do you think is going to happen as far as this relationship is concerned. Therefore, it undermines that basic relationship that should be based on love, trust and respect. Q- Would you say then, Mr. witness, that due to the behavior of the respondent in constantly lying and fabricating stories, she is then incapable of performing the basic obligations of the marriage? xxx

Q- Mr. witness, based on the testimony of Mr. Levy Mendoza, who is the third witness for the petitioner, testified that the respondent has been calling up the petitioner’s officemates and ask him (sic) on the activities of the petitioner and ask him on the behavior of the petitioner. And this is specifically stated on page six (6) of the transcript of stenographic notes, what can you say about this, Mr. witness?

Q- Now, if a person is in paranoid jealousy, would she be considered psychologically incapacitated to perform the basic obligations of the marriage? A- Yes, Ma’am.83 The other witness, Dr. Lopez, was presented to establish not only the psychological incapacity of respondent, but also the psychological capacity of petitioner. He concluded that respondent "is [a] pathological liar, that [she continues] to lie [and] she loves to fabricate about herself."84 These two witnesses based their conclusions of psychological incapacity on the case record, particularly the trial transcripts of respondent’s testimony, as well as the supporting affidavits of petitioner. While these witnesses did not personally examine respondent, the Court had already held in Marcos v. Marcos85 that personal examination of the subject by the physician is not required for the spouse to be declared psychologically incapacitated.86 We deem the methodology utilized by petitioner’s witnesses as sufficient basis for their medical conclusions. Admittedly, Drs. Abcede and Lopez’s common conclusion of respondent’s psychological incapacity hinged heavily on their own acceptance of petitioner’s version as the true set of facts. However, since the trial court itself accepted the veracity of petitioner’s factual premises, there is no cause to dispute the conclusion of psychological incapacity drawn therefrom by petitioner’s expert witnesses. Also, with the totality of the evidence presented as basis, the trial court explicated its finding of psychological incapacity in its decision in this wise:

To the mind of the Court, all of the above are indications that respondent is psychologically incapacitated to perform the essential obligations of marriage. It has been shown clearly from her actuations that respondent has that propensity for telling lies about almost anything, be it her occupation, her state of health, her singing abilities, her income, etc. She has this fantastic ability to invent and fabricate stories and personalities. She practically lived in a world of make believe making her therefore not in a position to give meaning and significance to her marriage to petitioner. In persistently and constantly lying to petitioner, respondent undermined the basic tenets of relationship between spouses that is based on love, trust and respect. As concluded by the psychiatrist presented by petitioner, such repeated lying is abnormal and pathological and amounts to psychological incapacity.87 Third. Respondent’s psychological incapacity was established to have clearly existed at the time of and even before the celebration of marriage. She fabricated friends and made up letters from fictitious characters well before she married petitioner. Likewise, she kept petitioner in the dark about her natural child’s real parentage as she only confessed when the latter had found out the truth after their marriage. Fourth. The gravity of respondent’s psychological incapacity is sufficient to prove her disability to assume the essential obligations of marriage. It is immediately discernible that the parties had shared only a little over a year of cohabitation before the exasperated petitioner left his wife. Whatever such circumstance speaks of the degree of tolerance of petitioner, it likewise supports the belief that respondent’s psychological incapacity, as borne by the record, was so grave in extent that any prolonged marital life was dubitable. It should be noted that the lies attributed to respondent were not adopted as false pretenses in order to induce petitioner into marriage. More disturbingly, they indicate a failure on the part of respondent to distinguish truth from fiction, or at least abide by the truth. Petitioner’s witnesses and the trial court were emphatic on respondent’s inveterate proclivity to telling lies and the pathologic nature of her mistruths, which according to them, were revelatory of respondent’s inability to understand and perform the essential obligations of marriage. Indeed, a person unable to distinguish between fantasy and reality would similarly be unable to comprehend the legal nature of the marital bond, much less its psychic meaning, and the corresponding obligations attached to marriage, including parenting. One unable to adhere to reality cannot be expected to adhere as well to any legal or emotional commitments. The Court of Appeals somehow concluded that since respondent allegedly tried her best to effect a reconciliation, she had amply exhibited her ability to perform her marital obligations. We are not convinced. Given the nature of her psychological condition, her willingness to remain in the marriage hardly banishes nay extenuates her lack of capacity to fulfill the essential marital

obligations. Respondent’s ability to even comprehend what the essential marital obligations are is impaired at best. Considering that the evidence convincingly disputes respondent’s ability to adhere to the truth, her avowals as to her commitment to the marriage cannot be accorded much credence. At this point, it is worth considering Article 45(3) of the Family Code which states that a marriage may be annulled if the consent of either party was obtained by fraud, and Article 46 which enumerates the circumstances constituting fraud under the previous article, clarifies that "no other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage." It would be improper to draw linkages between misrepresentations made by respondent and the misrepresentations under Articles 45 (3) and 46. The fraud under Article 45(3) vitiates the consent of the spouse who is lied to, and does not allude to vitiated consent of the lying spouse. In this case, the misrepresentations of respondent point to her own inadequacy to cope with her marital obligations, kindred to psychological incapacity under Article 36. Fifth. Respondent is evidently unable to comply with the essential marital obligations as embraced by Articles 68 to 71 of the Family Code. Article 68, in particular, enjoins the spouses to live together, observe mutual love, respect and fidelity, and render mutual help and support. As noted by the trial court, it is difficult to see how an inveterate pathological liar would be able to commit to the basic tenets of relationship between spouses based on love, trust and respect. Sixth. The Court of Appeals clearly erred when it failed to take into consideration the fact that the marriage of the parties was annulled by the Catholic Church. The appellate court apparently deemed this detail totally inconsequential as no reference was made to it anywhere in the assailed decision despite petitioner’s efforts to bring the matter to its attention.88 Such deliberate ignorance is in contravention of Molina, which held that interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. As noted earlier, the Metropolitan Tribunal of the Archdiocese of Manila decreed the invalidity of the marriage in question in a Conclusion89 dated 30 March 1995, citing the "lack of due discretion" on the part of respondent.90Such decree of nullity was affirmed by both the National Appellate Matrimonial Tribunal,91 and the Roman Rota of the Vatican.92 In fact, respondent’s psychological incapacity was considered so grave that a restrictive clause93 was appended to the sentence of nullity prohibiting respondent from contracting another marriage without the Tribunal’s consent.

In its Decision dated 4 June 1995, the National Appellate Matrimonial Tribunal pronounced:

stories, and maintained her excessive jealousy. From this fact, he draws the conclusion that respondent’s condition is incurable.

The JURISRPRUDENCE in the Case maintains that matrimonial consent is considered ontologically defective and wherefore judicially ineffective when elicited by a Part Contractant in possession and employ of a discretionary judgment faculty with a perceptive vigor markedly inadequate for the practical understanding of the conjugal Covenant or serious impaired from the correct appreciation of the integral significance and implications of the marriage vows.

From the totality of the evidence, can it be definitively concluded that respondent’s condition is incurable? It would seem, at least, that respondent’s psychosis is quite grave, and a cure thereof a remarkable feat. Certainly, it would have been easier had petitioner’s expert witnesses characterized respondent’s condition as incurable. Instead, they remained silent on whether the psychological incapacity was curable or incurable.

The FACTS in the Case sufficiently prove with the certitude required by law that based on the depositions of the Partes in Causa and premised on the testimonies of the Common and Expert Witnesse[s], the Respondent made the marriage option in tenure of adverse personality constracts that were markedly antithetical to the substantive content and implications of the Marriage Covenant, and that seriously undermined the integrality of her matrimonial consent in terms of its deliberative component. In other words, afflicted with a discretionary faculty impaired in its practicoconcrete judgment formation on account of an adverse action and reaction pattern, the Respondent was impaired from eliciting a judicially binding matrimonial consent. There is no sufficient evidence in the Case however to prove as well the fact of grave lack of due discretion on the part of the Petitioner.94

But on careful examination, there was good reason for the experts’ taciturnity on this point.

Evidently, the conclusion of psychological incapacity was arrived at not only by the trial court, but also by canonical bodies. Yet, we must clarify the proper import of the Church rulings annulling the marriage in this case. They hold sway since they are drawn from a similar recognition, as the trial court, of the veracity of petitioner’s allegations. Had the trial court instead appreciated respondent’s version as correct, and the appellate court affirmed such conclusion, the rulings of the Catholic Church on this matter would have diminished persuasive value. After all, it is the factual findings of the judicial trier of facts, and not that of the canonical courts, that are accorded significant recognition by this Court. Seventh. The final point of contention is the requirement in Molina that such psychological incapacity be shown to be medically or clinically permanent or incurable. It was on this score that the Court of Appeals reversed the judgment of the trial court, the appellate court noting that it did not appear certain that respondent’s condition was incurable and that Dr. Abcede did not testify to such effect.95 Petitioner points out that one month after he and his wife initially separated, he returned to her, desiring to make their marriage work. However, respondent’s aberrant behavior remained unchanged, as she continued to lie, fabricate

The petitioner’s expert witnesses testified in 1994 and 1995, and the trial court rendered its decision on 10 August 1995. These events transpired well before Molina was promulgated in 1997 and made explicit the requirement that the psychological incapacity must be shown to be medically or clinically permanent or incurable. Such requirement was not expressly stated in Article 36 or any other provision of the Family Code. On the other hand, the Court in Santos, which was decided in January 1995, began its discussion by first citing the deliberations of the Family Code committee,96 then the opinion of canonical scholars,97 before arriving at its formulation of the doctrinal definition of psychological incapacity.98 Santos did refer to Justice Caguioa’s opinion expressed during the deliberations that "psychological incapacity is incurable,"99 and the view of a former presiding judge of the Metropolitan Marriage Tribunal of the Archdiocese of Manila that psychological incapacity must be characterized "by (a) gravity, (b) juridical antecedence, and (c) incurability."100 However, in formulating the doctrinal rule on psychological incapacity, the Court in Santos omitted any reference to incurability as a characteristic of psychological incapacity.101 This disquisition is material as Santos was decided months before the trial court came out with its own ruling that remained silent on whether respondent’s psychological incapacity was incurable. Certainly, Santos did not clearly mandate that the incurability of the psychological incapacity be established in an action for declaration of nullity. At least, there was no jurisprudential clarity at the time of the trial of this case and the subsequent promulgation of the trial court’s decision that required a medical finding of incurability. Such requisite arose only with Molina in 1997, at a time when this case was on appellate review, or after the reception of evidence. We are aware that in Pesca v. Pesca,102 the Court countered an argument that Molina and Santos should not apply retroactively

with the observation that the interpretation or construction placed by the courts of a law constitutes a part of that law as of the date the statute in enacted.103 Yet we approach this present case from utterly practical considerations. The requirement that psychological incapacity must be shown to be medically or clinically permanent or incurable is one that necessarily cannot be divined without expert opinion. Clearly in this case, there was no categorical averment from the expert witnesses that respondent’s psychological incapacity was curable or incurable simply because there was no legal necessity yet to elicit such a declaration and the appropriate question was not accordingly propounded to him. If we apply Pesca without deep reflection, there would be undue prejudice to those cases tried before Molinaor Santos, especially those presently on appellate review, where presumably the respective petitioners and their expert witnesses would not have seen the need to adduce a diagnosis of incurability. It may hold in those cases, as in this case, that the psychological incapacity of a spouse is actually incurable, even if not pronounced as such at the trial court level. We stated earlier that Molina is not set in stone, and that the interpretation of Article 36 relies heavily on a case-to-case perception. It would be insensate to reason to mandate in this case an expert medical or clinical diagnosis of incurability, since the parties would have had no impelling cause to present evidence to that effect at the time this case was tried by the RTC more than ten (10) years ago. From the totality of the evidence, we are sufficiently convinced that the incurability of respondent’s psychological incapacity has been established by the petitioner. Any lingering doubts are further dispelled by the fact that the Catholic Church tribunals, which indubitably consider incurability as an integral requisite of psychological incapacity, were sufficiently convinced that respondent was so incapacitated to contract marriage to the degree that annulment was warranted. All told, we conclude that petitioner has established his cause of action for declaration of nullity under Article 36 of the Family Code. The RTC correctly ruled, and the Court of Appeals erred in reversing the trial court. There is little relish in deciding this present petition, pronouncing as it does the marital bond as having been inexistent in the first place. It is possible that respondent, despite her psychological state, remains in love with petitioner, as exhibited by her persistent challenge to the petition for nullity. In fact, the appellate court placed undue emphasis on respondent’s avowed commitment to remain in the marriage. Yet the Court decides these cases on legal reasons and not vapid sentimentality. Marriage, in legal contemplation, is more than the legitimatization of a desire of people in love to live together. WHEREFORE, the petition is GRANTED. The decision of the RTC dated 10 August 1995, declaring the marriage between petitioner and respondent NULL and VOID under Article 36 of the Family Code, is REINSTATED. No costs.

SO ORDERED.

4. People v. Genosa

already served the minimum period of her penalty while under detention during the pendency of this case.

The Case For automatic review before this Court is the September 25, 1998 Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

[G.R. No. 135981. January 15, 2004]

vs. MARIVIC

WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH.

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the battered woman syndrome (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is not entitled to complete exoneration because there was no unlawful aggression -no immediate and unexpected attack on her by her batterer-husband at the time she shot him.

The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages.[2]

PEOPLE OF THE GENOSA, appellant.

PHILIPPINES, appellee,

DECISION PANGANIBAN, J.:

Absent unlawful aggression, there can be no self-defense, complete or incomplete. But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and self-control. This psychological paralysis she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code. In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and impelled her to vindicate her life and her unborn childs. Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she has

The Information[3] charged appellant with parricide as follows: That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following wounds, to wit: Cadaveric spasm. Body on the 2nd stage of decomposition. Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth. Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture

of the blood vessels on the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage. Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis. Abdomen distended w/ gas. Trunk bloated. which caused his death.[4] With the assistance of her counsel,[5] appellant pleaded not guilty during her arraignment on March 3, 1997.[6] In due course, she was tried for and convicted of parricide.

The Facts

Version of the Prosecution The Office of the Solicitor General (OSG) summarizes the prosecutions version of the facts in this wise: Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Bens younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben and Earl Pierre. On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each had two (2) bottles of beer before heading home. Arturo would pass Bens house before reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for the masiao runner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of the Genosas rented house, he heard her say I wont hesitate to kill you to which Ben replied Why kill me when I am innocent? That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas rented house appeared uninhabited and was always closed.

On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to buy it. That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him. On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the house was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his sons misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son. Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray. About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against appellant.

She concluded that the cause of Bens death was cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone]. Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not home yet might have gone gambling since it was a payday. With her cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas house. Ecel went home despite appellants request for her to sleep in their house. Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him and instead attended to their children who were doing their homework. Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the television antenna or wire to keep her from watching television. According to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her You might as well be killed so nobody would nag me. Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She however, smashed the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then smashed Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom. Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly distorted the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the bedroom.[7] (Citations omitted)

Version of the Defense Appellant relates her version of the facts in this manner: 1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business Administration, and was working, at the time of her husbands death, as a Secretary to the Port

Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca. 2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were against their relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness developed as he was her constant partner at fiestas. 3. After their marriage, they lived first in the home of Bens parents, together with Bens brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben lived happily. But apparently, soon thereafter, the couple would quarrel often and their fights would become violent. 4. Bens brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the house but after a week, she returned apparently having asked for Bens forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to Bens aid again and saw blood from Bens forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Bens forgiveness. Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben and Marivic married in 1986 or 1985 more or less here in Fatima, Ormoc City. She said as the marriage went along, Marivic became already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivics two sons, there were three (3) misunderstandings. The first was when Marivic stabbed Ben with a table knife through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on the forehead using a sharp instrument until the eye was also affected. It was wounded and also the ear and her husband went to Ben to help; and the third incident was in 1995 when the couple had already transferred to the house in Bilwang and she saw that Bens hand was plastered as the bone cracked. Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention. 5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 After we collected our salary, we went to the cock-fighting place of ISCO. They stayed there for three (3) hours, after which they went to Uniloks and drank beer allegedly only two (2) bottles each. After drinking they bought barbeque

and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben, after which he went across the road to wait for the runner and the usher of the masiao game because during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners so that I can place my bet. On his way home at about 9:00 in the evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was one Fredo who is used by Ben to feed his fighting cocks. Basobas testimony on the root of the quarrel, conveniently overheard by him was Marivic saying I will never hesitate to kill you, whilst Ben replied Why kill me when I am innocent. Basobas thought they were joking. He did not hear them quarreling while he was across the road from the Genosa residence. Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he once told Ben before when he was stricken with a bottle by Marivic Genosa that he should leave her and that Ben would always take her back after she would leave him so many times. Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said Ben even had a wound on the right forehead. He had known the couple for only one (1) year. 6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed, and sometimes beat her. These incidents happened several times and she would often run home to her parents, but Ben would follow her and seek her out, promising to change and would ask for her forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he was drunk, at least three times a week. 7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she received at the hands of Ben. 7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through the open jalousies, he saw the spouses grappling with each other. Ben had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify. (Please note this was the same night as that testified to by Arturo Busabos.[8]) 7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on the night of

November 15, 1995. He peeped through the window of his hut which is located beside the Genosa house and saw the spouses grappling with each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa. He said after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was the same night as that testified to by Arturo Basobas). 7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that Ben would pawn items and then would use the money to gamble. One time, he went to their house and they were quarreling. Ben was so angry, but would be pacified if somebody would come. He testified that while Ben was alive he used to gamble and when he became drunk, he would go to our house and he will say, Teody because that was what he used to call me, mokimas ta, which means lets go and look for a whore. Mr. Sarabia further testified that Ben would box his wife and I would see bruises and one time she ran to me, I noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to her. Mr. Sarabia also said that once he saw Ben had been injured too. He said he voluntarily testified only that morning. 7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the market place, several taverns and some other places, but could not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house because she might be battered by her husband. When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that her husband was already there and was drunk. Miss Arano knew he was drunk because of his staggering walking and I can also detect his face. Marivic entered the house and she heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid every time her husband would come home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because the couple were very noisy in the sala and I had heard something was broken like a vase. She said Marivic ran into her room and they locked the door. When Ben couldnt get in he got a chair and a knife and showed us the knife through the window grill and he scared us. She said that Marivic shouted for help, but no one came. On cross-examination, she said that when she left Marivics house on November 15, 1995, the couple were still quarreling.

7.5. Dr. Dino Caing, a physician testified that he and Marivic were coemployees at PHILPHOS, Isabel, Leyte. Marivic was his patient many times and had also received treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries were reported in his OutPatient Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert witness.

On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented herself a room, and got herself a job as a field researcher under the alias Marvelous Isidro; she did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna.

xxxxxxxxx Dr. Caings clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate occasions was marked at Exhibits 2 and 2-B. The OPD Chart of Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit 3. On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were directly related to the crime committed. He said it is only a psychiatrist who is qualified to examine the psychological make-up of the patient, whether she is capable of committing a crime or not. 7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help to settle or confront the Genosa couple who were experiencing family troubles. He told Marivic to return in the morning, but he did not hear from her again and assumed that they might have settled with each other or they might have forgiven with each other. xxxxxxxxx Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Marivic said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened to the pipe she used to smash him once; that she was wounded by Ben on her wrist with the bolo; and that two (2) hours after she was whirled by Ben, he kicked her ass and dragged her towards the drawer when he saw that she had packed his things. 9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and some defense witnesses during the trial. 10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident, and among her responsibilities as such was to take charge of all medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in 1986. She was called by the police to go to the Genosa residence and when she got there, she saw some police officer and neighbor around. She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief. xxxxxxxxx Dra. Cerillo said that there is only one injury and that is the injury involving the skeletal area of the head which she described as a fracture. And that based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death. Dra. Cerillo was not cross-examined by defense counsel.

Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was violent and abusive towards her that night was because he was crazy about his recent girlfriend, Lulu x x x Rubillos.

11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of PARRICIDE committed with intent to kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.

12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.

and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted.

13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty beyond reasonable doubt of the crime of parricide, and further found treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH.

18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellants Briefs he had prepared for Marivic which, for reasons of her own, were not conformed to by her. The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel. 15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she submitted her Brief without counsels to the Court. This letter was stamp-received by the Honorable Court on 4 February 2000. 16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the time she killed her husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of said psychologists and psychiatrists. Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who opined that the description of the death wound (as culled from the post-mortem findings, Exhibit A) is more akin to a gunshot wound than a beating with a lead pipe. 17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivics URGENT OMNIBUS MOTION and remanded the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the battered woman syndrome plea, within ninety (90) days from notice,

Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical interviews and psychological assessment were done at her clinic. Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head of the Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University and St. Josephs College; and was the counseling psychologist of the National Defense College. She has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the Psychological Association of the Philippines and is a member of the American Psychological Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological profile of families involved in domestic violence and nullity cases. She was with the Davide Commission doing research about Military Psychology. She has written a book entitled Energy Global Psychology (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified as an expert on battered women as this is the first case of that nature. Dra. Dayan testified that for the research she conducted, on the sociodemographic and psychological profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a period of ten (10) years and discovered that there are lots of variables that cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder. Dra. Dayan described domestic violence to comprise of a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse. xxxxxxxxx

Dra. Dayan testified that in her studies, the battered woman usually has a very low opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of themselves and so when the violence would happen, they usually think that they provoke it, that they were the one who precipitated the violence, they provoke their spouse to be physically, verbally and even sexually abusive to them. Dra. Dayan said that usually a battered x x x comes from a dysfunctional family or from broken homes.

Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of herself as a victim.

Dra. Dayan said that the batterer, just like the battered woman, also has a very low opinion of himself. But then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they become violent. The batterer also usually comes from a dysfunctional family which over-pampers them and makes them feel entitled to do anything. Also, they see often how their parents abused each other so there is a lot of modeling of aggression in the family.

Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo Tomas. He was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military Surgeons.

Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her hope her husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the children. xxxxxxxxx Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in another room, or sometimes try to fight back triggering physical violence on both of them. She said that in a normal marital relationship, abuses also happen, but these are not consistent, not chronic, are not happening day in [and] day out. In an abnormal marital relationship, the abuse occurs day in and day out, is long lasting and even would cause hospitalization on the victim and even death on the victim.

xxxxxxxxx 19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before RTC-Branch 35, Ormoc City.

He authored The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954 1978 which was presented twice in international congresses. He also authored The Mental Health of the Armed Forces of the Philippines 2000, which was likewise published internationally and locally. He had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86. Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in psychiatry.

xxxxxxxxx Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that Marivic fits the profile of a battered woman because inspite of her feeling of self-confidence which we can see at times there are really feeling (sic) of loss, such feelings of humiliation which she sees herself as damaged and as a broken person. And at the same time she still has the imprint of all the abuses that she had experienced in the past. xxxxxxxxx

Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.

As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder depends on the vulnerability of the victim. Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, it will take more repetitive trauma to precipitate the posttraumatic stress disorder and this x x x is very dangerous. In psychiatry, the post-traumatic stress disorder is incorporated under the anxiety neurosis or neurologic anxcietism. It is produced by overwhelming brutality, trauma. xxxxxxxxx Dr. Pajarillo explained that with neurotic anxiety, the victim relives the beating or trauma as if it were real, although she is not actually being beaten at that time. She thinks of nothing but the suffering. xxxxxxxxx A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her selfworld is damaged. Dr. Pajarillo said that an abnormal family background relates to an individuals illness, such as the deprivation of the continuous care and love of the parents. As to the batterer, he normally internalizes what is around him within the environment. And it becomes his own personality. He is very competitive; he is aiming high all the time; he is so macho; he shows his strong faade but in it there are doubts in himself and prone to act without thinking.

Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and primarily with knives. Usually pointed weapons or any weapon that is available in the immediate surrounding or in a hospital x x x because that abound in the household. He said a victim resorts to weapons when she has reached the lowest rock bottom of her life and there is no other recourse left on her but to act decisively. xxxxxxxxx Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001. xxxxxxxxx On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivicc mental condition was that she was reexperiencing the trauma. He said that we are trying to explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. It will just come in flashes and probably at that point in time that things happened when the reexperiencing of the trauma flashed in her mind. At the time he interviewed Marivic she was more subdued, she was not super alert anymore x x x she is mentally stress (sic) because of the predicament she is involved. xxxxxxxxx 20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened trial a quo were elevated.[9]

Ruling of the Trial Court

xxxxxxxxx Dr. Pajarillo emphasized that even though without the presence of the precipator (sic) or the one who administered the battering, that re-experiencing of the trauma occurred (sic) because the individual cannot control it. It will just come up in her mind or in his mind. xxxxxxxxx

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of his head. The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the inclusion of the said experts reports in the records of the case for purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower court to admit the experts testimonies.

6. The trial court gravely erred in concluding that Marivics flight to Manila and her subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child.

On September 29, 2000, this Court issued a Resolution granting in part appellants Motion, remanding the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the battered woman syndrome plea; and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if any. Acting on the Courts Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan[10] and Alfredo Pajarillo,[11]supposedly experts on domestic violence. Their testimonies, along with their documentary evidence, were then presented to and admitted by the lower court before finally being submitted to this Court to form part of the records of the case.[12]

7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery. 8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death.[13] In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Courts Ruling The appeal is partly meritorious.

The Issues Collateral Factual Issues Appellant assigns the following alleged errors of the trial court for this Courts consideration: 1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense. 2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide. 3. The trial court gravely erred finding the cause of death to be by beating with a pipe. 4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa was a battered husband.

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues. As consistently held by this Court, the findings of the trial court on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance that could affect the outcome of the case.[14] In appellants first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material facts that would reverse or modify the trial courts disposition of the case. In any event, we will now briefly dispose of these alleged errors of the trial court. First, we do not agree that the lower court promulgated an obviously hasty decision without reflecting on the evidence adduced as to self-defense. We note that in his 17-page Decision, Judge Fortunito L. Madrona summarized the

testimonies of both the prosecution and the defense witnesses and -- on the basis of those and of the documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the accused. While she, or even this Court, may not agree with the trial judges conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence presented. Neither do we find the appealed Decision to have been made in an obviously hasty manner. The Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial compliance with his constitutional obligation.[15] Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married, despite the non-presentation of their marriage contract. In People v. Malabago,[16] this Court held: The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to. Two of the prosecution witnesses -- namely, the mother and the brother of appellants deceased spouse -- attested in court that Ben had been married to Marivic.[17]The defense raised no objection to these testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her marriage to Ben.[18]Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except only when there is a showing that (1) the admission was made through a palpable mistake, or (2) no admission was in fact made.[19] Other than merely attacking the non-presentation of the marriage contract, the defense offered no proof that the admission made by appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake. Third, under the circumstances of this case, the specific or direct cause of Bens death -- whether by a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September 29, 2000 Resolution, [c]onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the victims death.

Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of appellant. Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel defense of battered woman syndrome, for which such evidence may have been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal character, especially his past behavior, did not constitute vital evidence at the time. Fifth, the trial court surely committed no error in not requiring testimony from appellants children. As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present.[20] As the former further points out, neither the trial court nor the prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify. Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn child. Any reversible error as to the trial courts appreciation of these circumstances has little bearing on the final resolution of the case. First Legal Issue: Self-Defense and Defense of a Fetus Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any claimed justifying circumstance by clear and convincing evidence.[21] Well-settled is the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense.[22]

The Battered Woman Syndrome In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or, at the least, incomplete self-defense.[23] By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign courts convey their

understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period of time.[24] A battered woman has been defined as a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.[25] Battered women exhibit common personality traits, such as low selfesteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterers actions; and false hopes that the relationship will improve.[26] More graphically, the battered woman syndrome is characterized by the so-called cycle of violence,[27] which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.[28] During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged, because her placatory and passive behavior legitimizes his belief that he has the right to abuse her in the first place. However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence spirals out of control and leads to an acute battering incident.[29] The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt.[30] The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this good, gentle and caring man is the real person whom she loves. A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically. The illusion of absolute interdependency is well-entrenched in a battered womans psyche. In this phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her forgiveness. Underneath this miserable cycle of tension, violence and forgiveness, each partner may believe that it is better to die than to be separated. Neither one may really feel independent, capable of functioning without the other.[31] History of Abuse in the Present Case To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her heart-rending experience as follows: ATTY. TABUCANON Q How did you describe your marriage with Ben Genosa? A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was this abusive and cruelty manifested to you?

[Court] /to the witness

A He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me.

A Everytime he got drunk.

Q How frequent was the alleged cruelty that you said?

Q How many times did this happen?

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage, from that time on, how frequent was the occurrence?

A Several times already.

A Everytime he got drunk.

Q What did you do when these things happen to you?

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A I went away to my mother and I ran to my father and we separate each other.

A Three times a week.

Q What was the action of Ben Genosa towards you leaving home?

Q Do you mean three times a week he would beat you?

A He is following me, after that he sought after me.

A Not necessarily that he would beat me but sometimes he will just quarrel me. [32]

Q What will happen when he follow you? A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said sorry. Q During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor? A Yes, sir. Q Who are these doctors? A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. xxxxxxxxx Q You said that you saw a doctor in relation to your injuries?

Referring to his Out-Patient Chart[33] on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this manner: Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic? A Yes, sir. Q Who prepared the list of six (6) incidents, Doctor? A I did. Q Will you please read the physical findings together with the dates for the record. A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending physician: Dr. Lucero;

Q Who inflicted these injuries?

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending physician: Dr. Canora;

A Of course my husband.

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

Q You mean Ben Genosa?

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;

A Yes, sir.

A Yes, sir. xxxxxxxxx

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr. Canora. Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct?

Q By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened? A As per record, yes.

A Yes, sir.

Q What was the date?

Q Did you actually physical examine the accused?

A It was on November 6, 1995.

A Yes, sir.

Q So, did you actually see the accused physically?

Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion furuncle left axilla?

A Yes, sir. Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied.

A Yes, sir.

Q What is meant by furuncle axilla?

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A It is secondary of the light infection over the abrasion. Q What is meant by pain mastitis secondary to trauma? A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is tenderness. When your breast is traumatized, there is tenderness pain. Q So, these are objective physical injuries. Doctor? xxxxxxxxx Q Were you able to talk with the patient? A Yes, sir. Q What did she tell you? A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to her by her husband. Q You mean, Ben Genosa? A Yes, sir. xxxxxxxxx ATTY. TABUCANON:

A Eight (8) months pregnant. Q So in other words, it was an advance stage of pregnancy? A Yes, sir. Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other findings? A No, she was admitted for hypertension headache which complicates her pregnancy. Q When you said admitted, meaning she was confined? A Yes, sir. Q For how many days? A One day. Q Where? A At PHILPHOS Hospital. xxxxxxxxx Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on November 6, 1995 and she was 8 months pregnant. What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I have a record here, also the same period from 1989 to 1995, she had a consultation for twentythree (23) times. Q For what? A Tension headache. Q Can we say that specially during the latter consultation, that the patient had hypertension? A The patient definitely had hypertension. It was refractory to our treatment. She does not response when the medication was given to her, because tension headache is more or less stress related and emotional in nature. Q What did you deduce of tension headache when you said is emotional in nature? A From what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this disease. So, from the moment you ask to the patient all comes from the domestic problem. Q You mean problem in her household? A Probably. Q Can family trouble cause elevation of blood pressure, Doctor? A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication. Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused? A On November 6, 1995 consultation, the blood pressure was 180/120.

several times; and that on some occasions Marivic would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.[35] Ecel Arano also testified[36] that for a number of times she had been asked by Marivic to sleep at the Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened about ten oclock at night, because the couple were very noisy and I heard something was broken like a vase. Then Marivic came running into Ecels room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a knife. On the afternoon of November 15, 1995, Marivic again asked her help -this time to find Ben -- but they were unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave. On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple quarreling.[37] Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her: ATTY. TABUCANON: Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening? A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his father, then my second child said, he was not home yet. I was worried because that was payday, I was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I prepared dinner for my children. Q This is evening of November 15, 1995?

Q Is this considered hypertension?

A Yes, sir.

A Yes, sir, severe.

Q What time did Ben Genosa arrive?

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?

A When he arrived, I was not there, I was in Isabel looking for him.

A It was dangerous to the child or to the fetus. [34] Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the couple quarreling

Q So when he arrived you were in Isabel looking for him? A Yes, sir. Q Did you come back to your house? A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

Q Will you tell this Court what was his disposition?

A Bilwang.

A He was drunk again, he was yelling in his usual unruly behavior.

Q Is this your house or you are renting?

Q What was he yelling all about?

A Renting.

A His usual attitude when he got drunk.

Q What time were you able to come back in your residence at Bilwang?

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?

A I went back around almost 8:00 oclock.

A He is nagging at me for following him and he dared me to quarrel him.

Q What happened when you arrived in your residence? A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was worried that he would again beat me so I requested my cousin to sleep with me, but she resisted because she had fears that the same thing will happen again last year.

Q What was the cause of his nagging or quarreling at you if you know? A He was angry at me because I was following x x x him, looking for him. I was just worried he might be overly drunk and he would beat me again.

Q Who was this cousin of yours who you requested to sleep with you?

Q You said that he was yelling at you, what else, did he do to you if any?

A Ecel Arao, the one who testified.

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his provocation and he switch off the light and I said to him, why did you switch off the light when the children were there. At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

Q Did Ecel sleep with you in your house on that evening? A No, because she expressed fears, she said her father would not allow her because of Ben. Q During this period November 15, 1995, were you pregnant? A Yes, 8 months. Q How advance was your pregnancy? A Eight (8) months. Q Was the baby subsequently born? A Yes, sir.

Q What did he do with the bolo? A He cut the antenna wire to keep me from watching T.V. Q What else happened after he cut the wire?

Q Whats the name of the baby you were carrying at that time?

A He switch off the light and the children were shouting because they were scared and he was already holding the bolo.

A Marie Bianca.

Q How do you described this bolo?

Q What time were you able to meet personally your husband?

A 1 1/2 feet.

A Yes, sir.

Q What was the bolo used for usually?

Q What time?

A For chopping meat.

A When I arrived home, he was there already in his usual behavior.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

A Yes, sir.

Q What do you mean that he was about to attack you?

Q What is there in the drawer?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

A I was aware that it was a gun.

Q So when he whirled you, what happened to you? A I screamed for help and then he left. Q You said earlier that he whirled you and you fell on the bedside? A Yes, sir. Q You screamed for help and he left, do you know where he was going? A Outside perhaps to drink more. Q When he left what did you do in that particular time? A I packed all his clothes. Q What was your reason in packing his clothes? A I wanted him to leave us. Q During this time, where were your children, what were their reactions? A After a couple of hours, he went back again and he got angry with me for packing his clothes, then he dragged me again of the bedroom holding my neck. Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT INTERPRETER: (At this juncture the witness started crying). ATTY. TABUCANON: Q Were you actually brought to the drawer? A Yes, sir. Q What happened when you were brought to that drawer? A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. COURT INTERPRETER: (The witness at this juncture is crying intensely). xxxxxxxxx

COURT INTERPRETER:

ATTY. TABUCANON:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

Q Talking of drawer, is this drawer outside your room?

A And he dragged me towards the door backward. ATTY. TABUCANON: Q Where did he bring you? A Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be nobody to nag me. Q So you said that he dragged you towards the drawer?

A Outside. Q In what part of the house? A Dining. Q Where were the children during that time? A My children were already asleep. Q You mean they were inside the room? A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like? A Three (3) inches long and 1/2 inch wide. Q Is it a flexible blade? A Its a cutter. Q How do you describe the blade, is it sharp both edges? A Yes, because he once used it to me. Q How did he do it? A He wanted to cut my throat. Q With the same blade? A Yes, sir, that was the object used when he intimidate me. [38] In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling about seventeen hours. Based on their talks, the former briefly related the latters ordeal to the court a quo as follows: Q: What can you say, that you found Marivic as a battered wife? Could you in laymans term describe to this Court what her life was like as said to you? A: What I remember happened then was it was more than ten years, that she was suffering emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical abuse. The husband had a very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing being involved in cockfight and going home very angry and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she was also aware, almost like living in purgatory or even hell when it was happening day in and day out. [39] In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward, additional supporting evidence as shown below:

Q In your first encounter with the appellant in this case in 1999, where you talked to her about three hours, what was the most relevant information did you gather? A The most relevant information was the tragedy that happened. The most important information were escalating abuses that she had experienced during her marital life. Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or at least you have substantial knowledge of the facts of the case? A I believe I had an idea of the case, but I do not know whether I can consider them as substantial. xxxxxxxxx Q Did you gather an information from Marivic that on the side of her husband they were fond of battering their wives? A I also heard that from her? Q You heard that from her? A Yes, sir. Q Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives? A What I remember that there were brothers of her husband who are also battering their wives. Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed her and battered [her] several times in that room? A She told me about that. Q Did she inform you in what hotel in Ormoc? A Sir, I could not remember but I was told that she was battered in that room. Q Several times in that room? A Yes, sir. What I remember was that there is no problem about being battered, it really happened. Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also believe that there had been provocation and I also believe that she became a disordered person. She had to suffer anxiety reaction because of all the battering that happened and so she became an abnormal person who had lost shes not during the time and that is why it happened because of all the physical battering, emotional battering, all the psychological abuses that she had experienced from her husband. Q I do believe that she is a battered wife. Was she extremely battered? A Sir, it is an extreme form of battering. Yes.[40]

was battered and maltreated relentlessly and mercilessly by her husband whenever he was drunk. Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, [s]he also sought the advice and help of close relatives and well-meaning friends in spite of her feeling ashamed of what was happening to her. But incessant battering became more and more frequent and more severe. x x x.[43] From the totality of evidence presented, there is indeed no doubt in the Courts mind that Appellant Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Parenthetically, the credibility of appellant was demonstrated as follows: Q And you also said that you administered [the] objective personality test, what x x x [is this] all about? A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find out about the lying prone[ne]ss of the person. Q What do you mean by that? A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x x x [will] tell a lie[?] Q And what did you discover on the basis of this objective personality test? A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that Im gathering from her are the truth.[41] The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report,[42] which was based on his interview and examination of Marivic Genosa. The Report said that during the first three years of her marriage to Ben, everything looked good -- the atmosphere was fine, normal and happy -- until Ben started to be attracted to other girls and was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in drinking sprees. The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The Report continued: At first, it was verbal and emotional abuses but as time passed, he became physically abusive. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree]. They had been married for twelve years[;] and practically more than eight years, she

Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on wives and common law partners are both relevant and necessary. How can the mental state of the appellant be appreciated without it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her selfrespect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called battered wife syndrome.[44] To understand the syndrome properly, however, ones viewpoint should not be drawn from that of an ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have not been through a similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about battered women.[45] The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in which a battered woman is charged with the killing of her violent partner. The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the latters ability to act decisively in her own interests, making her feel trapped in the relationship with no means of escape.[46] In her years of research, Dr. Walker found that the abuse often escalates at the point of separation and battered women are in greater danger of dying then.[47]

Corroborating these research findings, Dra. Dayan said that the battered woman usually has a very low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually abusive to them.[48] According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner -- poverty, self-blame and guilt arising from the latters belief that she provoked the violence, that she has an obligation to keep the family intact at all cost for the sake of their children, and that she is the only hope for her spouse to change.[49] The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving violent family relations, having evaluated probably ten to twenty thousand violent family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence, in which the physical abuse on the woman would sometimes even lead to her loss of consciousness.[50] Dr. Pajarillo explained that overwhelming brutality, trauma could result in posttraumatic stress disorder, a form of anxiety neurosis or neurologic anxietism.[51] After being repeatedly and severely abused, battered persons may believe that they are essentially helpless, lacking power to change their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of coping responses to the trauma at the expense of the victims ability to muster an active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do will have a predictable positive effect.[52] A study[53] conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that even if a person has control over a situation, but believes that she does not, she will be more likely to respond to that situation with coping responses rather than trying to escape. He said that it was the cognitive aspect -- the individuals thoughts -- that proved all-important. He referred to this phenomenon as learned helplessness. [T]he truth or facts of a situation turn out to be less important than the individuals set of beliefs or perceptions concerning the situation. Battered women dont attempt to leave the battering situation, even when it may seem to outsiders that escape is possible, because they cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible circumstances.[54] Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also believes that he is capable of killing her, and that there is no escape.[55] Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the

relationship.[56] Unless a shelter is available, she stays with her husband, not only because she typically lacks a means of self-support, but also because she fears that if she leaves she would be found and hurt even more.[57] In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More specifically, we failed to find ample evidence that would confirm the presence of the essential characteristics of BWS. The defense fell short of proving all three phases of the cycle of violence supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics of this stage. However, that single incident does not prove the existence of the syndrome. In other words, she failed to prove that in at least another battering episode in the past, she had gone through a similar pattern. How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Bens relatively minor abuses? What means did she employ to try to prevent the situation from developing into the next (more violent) stage? Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that she would usually run away to her mothers or fathers house;[58] that Ben would seek her out, ask for her forgiveness and promise to change; and that believing his words, she would return to their common abode. Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only hope for Ben to reform? And that she was the sole support of his emotional stability and well-being? Conversely, how dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of them regard death as preferable to separation? In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and fully demonstrate the essential characteristics of the syndrome. The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to explain fully, albeit merely theoretically and scientifically, how the personality of the battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse. They corroborated each others testimonies, which

were culled from their numerous studies of hundreds of actual cases. However, they failed to present in court the factual experiences and thoughts that appellant had related to them -- if at all -- based on which they concluded that she had BWS. We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be appreciated. To repeat, the records lack supporting evidence that would establish all the essentials of the battered woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense.[59] From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of mind of the battered woman at the time of the offense[60] -- she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life. Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real threat on ones life; and the peril sought to be avoided must be imminent and actual, not merely imaginary.[61] Thus, the Revised Penal Code provides the following requisites and effect of selfdefense:[62] Art. 11. Justifying circumstances. -- The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. Unlawful aggression is the most essential element of self-defense.[63] It presupposes actual, sudden and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.[64] In the present case, however, according to the testimony of Marivic herself, there was a sufficient time

interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their childrens bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety. Had Ben still been awaiting Marivic when she came out of their childrens bedroom -- and based on past violent incidents, there was a great probability that he would still have pursued her and inflicted graver harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life would amount to sentencing her to murder by installment.[65] Still, impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendants use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger.[66] Considering such circumstances and the existence of BWS, self-defense may be appreciated. We reiterate the principle that aggression, if not continuous, does not warrant self-defense.[67] In the absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim.[68] Thus, Marivics killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including that which has not been raised by the parties.[69] From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report dated November 29, 2000, opined as follows: This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and natural selfcontrol. It is very clear that she developed heightened sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced

at the hands of her abuser husband a state of psychological paralysis which can only be ended by an act of violence on her part. [70] Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of repetitious pain taking, repetitious battering, [and] repetitious maltreatment as well as the severity and the prolonged administration of the battering is posttraumatic stress disorder.[71] Expounding thereon, he said: Q What causes the trauma, Mr. Witness? A What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the prolonged administration of battering or the prolonged commission of the battering and the psychological and constitutional stamina of the victim and another one is the public and social support available to the victim. If nobody is interceding, the more she will go to that disorder.... xxxxxxxxx Q You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic stress disorder, Dr. Pajarillo? A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head, banging of the head like that. It is usually the very very severe stimulus that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face, strangulating the individual, suffocating the individual, and boxing the individual. In this situation therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she is very susceptible because the woman will not only protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic] degree. Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify? A We classify the disorder as [acute], or chronic or delayed or [a]typical. Q Can you please describe this pre[-]classification you called delayed or [atypical]? A The acute is the one that usually require only one battering and the individual will manifest now a severe emotional instability, higher irritability remorse, restlessness, and fear and probably

in most [acute] cases the first thing will be happened to the individual will be thinking of suicide. Q And in chronic cases, Mr. Witness? A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal and then become normal. This is how you get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder. [72] Answering the questions propounded by the trial judge, the expert witness clarified further: Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her mental capacity? A Yes, your Honor. Q As you were saying[,] it x x x obfuscated her rationality? A Of course obfuscated.[73] In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in cumulative provocation which broke down her psychological resistance and natural self-control, psychological paralysis, and difficulty in concentrating or impairment of memory. Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished the exercise by appellant of her will power without, however, depriving her of consciousness of her acts. There was, thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal Code, this circumstance should be taken in her favor and considered as a mitigating factor. [76] In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this state of mind is present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason.[77] To appreciate this circumstance, the following requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed from the commission of the crime by a considerable length of time, during which the accused might recover her normal equanimity.[78]

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life was likewise on that of her fetus.[79] His abusive and violent acts, an aggression which was directed at the lives of both Marivic and her unborn child, naturally produced passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate room, her emotional and mental state continued. According to her, she felt her blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and used it to shoot him. The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillos testimony[80] that with neurotic anxiety -- a psychological effect on a victim of overwhelming brutality [or] trauma -- the victim relives the beating or trauma as if it were real, although she is not actually being beaten at the time. She cannot control re-experiencing the whole thing, the most vicious and the trauma that she suffered. She thinks of nothing but the suffering. Such reliving which is beyond the control of a person under similar circumstances, must have been what Marivic experienced during the brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should further be credited with the mitigating circumstance of passion and obfuscation. It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation -- did not arise from the same set of facts. On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of her will power without depriving her of consciousness of her acts. The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the killing. That the incident occurred when she was eight months pregnant with their child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced passion and obfuscation on her part. Second Legal Issue: Treachery

There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party might make.[81] In order to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence.[82] Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing itself.[83] Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in bed with an open, depressed, circular fracture located at the back of his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony of appellant leads us to the events surrounding his death: Q You said that when Ben came back to your house, he dragged you? How did he drag you? COURT: The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) A And he dragged me towards the door backward. ATTY. TABUCANON: Q Where did he bring you? A Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be nobody to nag me Q So you said that he dragged you towards the drawer? A Yes, sir. Q What is there in the drawer? A I was aware that it was a gun. COURT INTERPRETER (At this juncture the witness started crying) ATTY. TABUCANON: Q Were you actually brought to the drawer? A Yes, sir.

Q What happened when you were brought to that drawer? A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. COURT INTERPRETER (The witness at this juncture is crying intensely). xxxxxxxxx

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room. Q What else happened? A When I was in the other room, I felt the same thing like what happened before when I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was about to die because of my blood pressure. COURT INTERPRETER: (Upon the answer of the witness getting the pipe and smashed him, the witness at the same time pointed at the back of her neck or the nape). ATTY. TABUCANON: Q You said you went to the room, what else happened?

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like?

A Considering all the physical sufferings that Ive been through with him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got that gun and I shot him.

A Three (3) inches long and inch wide.

COURT

Q It is a flexible blade?

/to Atty. Tabucanon

A Its a cutter.

Q You shot him?

Q How do you describe the blade, is it sharp both edges?

A Yes, I distorted the drawer.[84]

A Yes, because he once used it to me. Q How did he do it? A He wanted to cut my throat. Q With the same blade? A Yes, sir, that was the object used when he intimidate me. xxxxxxxxx ATTY. TABUCANON: Q You said that this blade fell from his grip, is it correct? A Yes, because I smashed him. Q What happened?

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victims position relative to appellants at the time of the shooting. Besides, equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant.[85] Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from any defense that might be put up by the party attacked.[86] There is no showing, though, that the present appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her batterer-spouse. In the absence of any convincing proof that she consciously and deliberately employed the method by which she

committed the crime in order to ensure its execution, this Court resolves the doubt in her favor.[87]

Proper Penalty The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two mitigating circumstances and no aggravating circumstance have been found to have attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5[88]of the same Code.[89] The penalty of reclusion temporal in its medium period is imposable, considering that two mitigating circumstances are to be taken into account in reducing the penalty by one degree, and no other modifying circumstances were shown to have attended the commission of the offense.[90] Under the Indeterminate Sentence Law, the minimum of the penalty shall be within the range of that which is next lower in degree -- prision mayor -- and the maximum shall be within the range of the medium period of reclusion temporal. Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already served the minimum period, she may now apply for and be released from detention on parole.[91]

make or invent them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom, may do so. The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner. Second, the final acute battering episode preceding the killing of the batterer must have produced in the battered persons mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the accused, based on the history of violence perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the existing facts of the present case, however, not all of these elements were duly established. WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum. Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director of the Bureau of Corrections may immediately RELEASEher from custody upon due determination that she is eligible for parole, unless she is being held for some other lawful cause. Costs de oficio. SO ORDERED.

Epilogue Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and recognize vis--vis the given set of facts in the present case. The Court agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the syndrome and the distinct personality of the chronically abused person. Certainly, the Court has learned much. And definitely, the solicitor general and appellants counsel, Atty. Katrina Legarda, have helped it in such learning process. While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence and given facts. We cannot