Jemboy Baltazar‘s family was not happy with the outcome of the murder case they filed against the six police officers and personnel tagged in the teen’s killing.

After over four months, Navotas City RTC Branch 286 Presiding Judge Pedro Dabu sanctioned the cops tagged as suspects with lighter penalties on Tuesday, February 27.

The court convicted Police Staff Sergeant Gerry Maliban, not of murder but of homicide. This, even though the original complaint was murder. This could happen as section 5, rule 120 of the revised rules of criminal procedure, states that a person can be convicted of a lesser crime than the crime he/she was originally charged with.

Four others – Police Staff Sergeant Niko Pines Esquilon, Police Executive Master Sergeant Roberto Balais Jr., Police Corporal Edmard Jake Blanco, Patrolman Benedict Mangada – were convicted of illegal discharge of firearm and sentenced to four months in prison.

Since they received short jail time, they could be released from detention because the court allowed their preventive suspension to be credited. They have been detained since October 2023, or four months prior to sentencing.

Meanwhile, Police Staff Sergeant Antonio Bugayong Jr. was acquitted. After the verdict, Baltazar’s family aired their disappointment, particularly over Maliban’s jail time.

“‘Yong lima po makakalaya po, si Maliban lang po ‘yong makukulong, apat na taon lang po. Iyon lang po ba ‘yong buhay ng anak ko? Siya po apat na taon lang siyang makukulong, ‘yong anak ko habang buhay nang wala,” Rodaliza Baltazar, the teen’s mother, said.

(The other five will be freed, and only Maliban will be imprisoned for only four years. Is that what my son’s life is only worth? Maliban will be jailed for only four years, while my son is gone forever.)

Why the cops received lighter sanctions is now the question for the Baltazar family.

Why Maliban is liable

Undoubtedly the teen was killed, and whoever caused the gunshot wound in his body was criminally liable for his death. The court said this, and highlighted the autopsy report conducted by forensic pathologist Dr. Raquel Fortun, which found that the gunshot wound was the underlying cause of death of the teen.

This was based in the doctrine “el que es causa de la causa es causa del mal cuasado” (he who is the cause of the cause is the cause of the evil caused), which was used by courts in previous cases.

The evidence also pointed to Maliban as the police officer who aimed at Baltazar, the court said.

First, Sonny Boy Agustillo, Baltazar’s friend who was with him when he was killed by the police, testified that Baltazar said he saw a “fat man” fire his gun during the police operation on August 2, 2023. To confirm, Agustillo stood up and also saw the same man in the dike firing his gun. During one of the hearings, Agustillo identified Maliban as the said “fat man.”

Agustillo’s testimony was supported by no other other Police Captain Mark Joseph Carpio, one of the team leaders of the operation where Baltazar was killed. Carpio testified that he saw Maliban standing in the dike and firing his gun at Baltazar and Agustillo’s boat. Additional evidence proved that the fired cartridge in the boat found by Baltazar’s uncle, Nicanor Guillermo, matched Maliban’s firearm that he surrendered after he was implicated in the crime.

The court also took note of the fact that Maliban himself admitted to having fired his gun during the Senate probe into the killing on August 22 and 29, 2023.

Why only homicide and not murder?

The court said it found Maliban guilty of homicide, and not of murder. A person is liable for homicide under article 249 of the Revised Penal Code (RPC) if that “person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.”

In the decision, there were elements of murder that were not present in the case, thus the downgrade to homicide.

Treachery, an element of murder defined under article 248 of the RPC, happens when an “offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended part might make.”

In the decision, the court said even though Baltazar could not have defended himself, it still cannot be said that Maliban “employed means or methods or forms in the execution of the crime.” It was proven, according to the decision, that Maliban’s urge to shoot only materialized when Baltazar attempted to escape. Thus, treachery was ruled out.

Another element of murder that the court said was not present was evident premeditation. Noting the fact that Maliban’s urge to shoot only materialized during the teen’s escape, the element of evident premeditation was not proven.

The court mentioned Yapyuco vs. Sandiganbayan: “The allegation of evident premeditation has not been proved beyond reasonable doubt because the evidence is consistent with the fact that the urge to kill had materialized in the minds of petitioners as instantaneously as they perceived their suspects to be attempting flight and evading arrest.”

Why is penalty lower for Maliban?

Homicide is usually punished with 12 years and one day as minimum, and up to 20 years as maximum.

Article 11 of the RPC lists justifying circumstances that do not incur criminal liability. This means that if a person can prove that his/her act falls under these circumstances, he/she will not be held criminally liable. Among the circumstances mentioned is: “any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.”

However, the court was not entirely convinced that Maliban should not be held liable through the justifying circumstances. So the court applied article 69 of the RPC to the cop’s case, which states: “A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in Article 11 and 12, provided that the majority of such conditions be present.”

The court also took note of Maliban’s surrender before authorities. Voluntary surrender could also be considered by the court to lower penalties in a criminal case.

With all these considerations, Maliban was sentenced by the court to four years, two months, and 10 days, up to six years, four months, and 20 days.

Lower penalty for others

The court said Balais, Esquilon, Blanco, and Mangada fired their guns at the water, and not at the teen, adding that there was no evidence to prove that the two gunshot wounds Baltazar sustained were caused by two different guns. 

The court took note of Dado vs. People, that in conspiracy “there should be a conscious design to perpetrate the offense.” In the decision, the court said that neither joint nor simultaneous action could be sufficient proof to prove conspiracy. Since conspiracy was ruled out in the case, the cops were liable individually, and not as a group.

“As we found that these accused did not conspire with PSSg Maliban in shooting Jemboy and that they lacked the intention to kill the victim as shown by their acts of firing their guns in the water just in front of them, they are only liable with Illegal Discharge of Firearms,” the decision read.

As for Bugayong, who was acquitted in the case, the court said there was doubt that he fired his gun. The court said there were conflicting testimonies on whether he fired his gun or not. He was also not the cop who fired his gun that Agustillo saw in the dike.

In addition, the paraffin test on his gun turned out to be negative. Although the negative result is not conclusive evidence, it served as corroborative evidence, the court explained.

The Navotas court added that for Bugayong, this rule was applicable: “if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.”

Options left

Essentially, it would be difficult to appeal Bugayong’s acquittal because it would amount to a violation of the double jeopardy rule, which is provided in the Constitution.

Section 21 of the Constitution states: “No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”

The Baltazar family can, however, file a petition for certiorari – a legal remedy used to review grave abuse of discretion – to ask another court to review a lower court’s ruling. This is usual practice when seeking a review of a conviction, without touching on the double jeopardy rule. (READ: Office of the Solicitor General challenges Leila de Lima’s last acquittal)

On February 27, Department of Justice spokesperson Assistant Secretary Mico Clavano said they will bring the case to the Court of Appeals, adding that they will tap the Office of the Solicitor General to represent the government in the appeal. 

The six cops, including their supervisors Carpio and Police Captain Luisito dela Cruz, were ordered dismissed by the PNP. The dismissal is still pending because of the cops’ appeal. However, if the appeal is junked, the police officers and personnel will be officially removed from the police service. – Rappler.com