Suddenness of attack NOT treachery

Two (2) conditions must concur for treachery to be appreciated: first, the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and, second, the means of execution was deliberately or consciously adopted.[1]In People v. Villalba,[2] the Supreme Court held that the suddenness of the attack, the infliction of the wound from behind the victim, the vulnerable position of the victim at the time the attack was made, or the fact that the victim was unarmed, do not by themselves render the attack as treacherous. The means employed for the commission of the crime or the mode of attack must be shown to have been consciously or deliberately adopted by the accused to ensure the consummation of the crime and at the same time, eliminate or reduce the risk of retaliation from the intended victim.[3]

In People v. PO1 De Gracia,[4] both the CA and the RTC were one in finding that although the shooting of David was sudden, there was no evidence showing that De Gracia deliberately and consciously adopted such mode of attack to ensure the commission of the crime.

Robert testified before the trial court as follows:

Q:	Are you referring to whom when you say the two of them?
A:	Bless and the accused.
Q:	Did you hear what they were talking about?
A:	Yun ano lang po, "pag sinaktan mo ang mga kaibigan ko, sasabunutan kita."
Q:	Who said that?
A:	Bless.
Q:	To whom did he say that?
A:	To the accused.
Q:	And what did the accused reply when she said that if any?
A:	He suddenly pointed the gun, and the gun fired. The incident happened so fast.

Joshua also testified as follows:

Q:	At any point while you were on your laptop, was there any instance that caught your attention as to the dialogue between accused and Bless?
A:	My attention was focus [on] them when I heard the word, "sige sabunutan mo ako ulit, babarilin ko itong kaibigan mo."
Q:	Who was in front of him at that time?
A:	It was Dave, ma'am.
Q:	So when you look at the accused pointing the gun at Dave, can you tell us what happened next, if any?
A:	Right after he said those words, the gun fired, ma'am.
Q:	Who was hit?
A:	Dave was hit, ma'am.

The testimonies of the prosecution witnesses only pointed to the suddenness of the shooting. Nowhere in their testimonies did they clearly state that De Gracia consciously adopted the means of firing the gun. David might have no chance to defend himself, but there was no showing that De Gracia deliberately chose the means employed which resulted in his killing. Absent any circumstance that accused wilfully and thoughtfully espoused, through any external manifestation, the manner to kill David, the element of alevosia could not be appreciated. It is a well-settled rule that treachery is never presumed.[5]

[1] People v. Umawid, G.R. No. 208719, June 9, 2014.

[2] G.R. No. 207629, October 22, 2014.

[3] People v. Dagani, 530 Phil. 501, 520-521 (2006).

[4] G.R. No. 213104, July 29, 2015.

[5] People v. Ramos, 411 Phil. 115, 125 (2004).