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Criminal law reviewer

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  • 1. CCCRRRIIIMMMIIINNNAAALLL BAR REVIEWER UP LAW2012 Criminal Law 1 Criminal Law 2 LAWDean Danilo L. Concepcion Dean, UP College of Law Prof. Concepcion L. Jardeleza Associate Dean, UP College of Law Prof. Ma. Gisella D. Reyes Secretary, UP College of Law Prof. Florin T. Hilbay Faculty Adviser, UP Law Bar Operations Commission 2012 Ramon Carlo F. Marcaida Commissioner Eleanor Balaquiao Mark Xavier Oyales Academics Committee Heads Camille Umali Charmaine Sto. Domingo Criminal Law Subject Heads Graciello Timothy Reyes Layout UP LAW BAR OPERATIONS COMMISSION
  • 2. CRIMINAL LAW REVIEWER 2 CCCRRRIIIMMMIIINNNAAALLL BAR REVIEWER UP LAW2012 BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages LAWCRIMINAL LAW TEAM 2012 Faculty Editor | Prof. Jay Batongbacal Subject Heads | Camille Umali • Charmaine Sto. Domingo LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes UP LAW BAR OPERATIONS COMMISSION
  • 3. CCCRRRIIIMMMIIINNNAAALLL LAW 2012 UP Law Bar Reviewer Copyright and all other relevant rights over this material are owned jointly by the University of the Philippines College of Law and the Student Editorial Team. The ownership of the work belongs to the University of the Philippines College of Law. No part of this book shall be reproduced or distributed without the consent of the University of the Philippines College of Law. All Rights reserved. UP LAW BAR OPERATIONS COMMISSION
  • 4. CRIMINAL LAW REVIEWER 4 Criminal Law 1 CHAPTER I. FUNDAMENTAL PRINCIPLES OF CRIMINAL LAW ..........................14 A. Definition of Criminal Law ........ 14 1. Difference between Mala in Se and Mala Prohibita.......................... 14 B. Scope of Application and Characteristics of the Philippine Criminal Law 16 0. Generality ........................ 16 1. Territoriality ..................... 17 2. Prospectivity ..................... 19 3. Legality (nullum crimen nulla poena sine lege) ....................... 20 4. Strict Construction of Penal Laws Against State: The ―Doctrine of Pro Reo‖ ..................................... 20 C. Constitutional limitations on the power of Congress to enact penal laws in the Bill of Rights.......................... 20 1. Equal protection ................. 20 2. Due process....................... 20 3. Non-imposition of cruel and unusual punishment or excessive fines 20 4. Bill of attainder .................. 20 5. Ex post facto law ................ 20 CHAPTER II. FELONIES .....................22 A. Preliminary matters ................ 22 1. Differentiating Felonies, Offense, Misdemeanor and Crime .............. 22 1. Felonies: How Committed......... 22 2. How is Criminal Liability Incurred?................................ 22 3. Discussion of Article 5........... 23 4. Wrongful Act Different from that Intended ................................ 23 5. Omission .......................... 25 B. Classifications of Felonies......... 25 1. According to the Manner of Their Commission............................. 26 2. According to the Stages of Their Execution ............................... 26 3. According to Their Gravity ..... 26 4. As to Count ....................... 27 5. As to Nature ...................... 27 C. Elements of Criminal Liability .... 27 1. Elements of Felonies ............ 27 Intentional Felonies ................... 27 D. Impossible Crimes .................. 31 E. Stages of Execution................. 32 F. Conspiracy and Proposal ........... 36 G. Multiple Offenders.................. 39 1. Recidivism......................... 40 2. Habituality (Reiteracion) ....... 40 3. Quasi-Recidivism ................. 40 4. Habitual Delinquency............ 40 H. Complex Crimes and Special Complex Crimes........................... 40 1. Complex Crimes.................. 41 2. Special Complex/Composite crimes ................................... 42 3. Continued and Continuing Crimes (Delito Continuado) ................... 42 CHAPTER III. CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY ..............44 A. Justifying Circumstances .......... 44 1. Self Defense ...................... 44 2. Defense of Relatives............. 46 3. Defense of Strangers ............ 46 4. Avoidance of a Greater Evil .... 46 5. Fulfillment of Duty or Lawful Exercise of Right or office............ 47 6. Obedience to an order issued for some lawful purpose .................. 47 B. Exempting Circumstances ......... 48 1. Insanity and Imbecility .......... 49 2. Minority............................ 49 3. Accident........................... 50 4. Irresistible Force................. 50 5. Uncontrollable Fear ............. 51 6. Insuperable or Lawful Causes .. 51 C. Mitigating Circumstances .......... 51 1. Incomplete Justification and Exemption .............................. 52 2. Under 18 Or Over 70 Years Of Age 53 3. No Intention to Commit So Grave A Wrong (Praeter Intentionem)...... 53 4. Sufficient Provocation or Threat 54 5. Immediate Vindication of A Grave Offense.................................. 54 6. Passion or obfuscation (Arrebato y Obsecacion) .......................... 55 7. Voluntary Surrender ............. 56 8. Plea Of Guilt...................... 57 9. Plea to a Lesser Offense ........ 57 10. Physical Defects............... 57 11. Illness........................... 57
  • 5. CCCRRRIIIMMMIIINNNAAALLL LAW12. Analogous Mitigating Circumstances.......................... 58 D. Aggravating Circumstances........ 58 1. Generic............................ 59 1. Taking Advantage of Public Office 59 2. In Contempt of or With Insult to Public Authorities ............... 59 3. With Insult or Lack of Regard Due to Offended Party by Reason of Rank, Age or Sex.................... 60 4. Abuse of Confidence and Obvious Ungratefulness............ 61 5. Crime in Palace or in Presence of the Chief Executive ............. 62 6. Nighttime (Nocturnidad); Uninhabited Place (Despoblado); With a Band (Cuadrilla)............ 62 7. On Occasion of a Calamity .. 63 8. Aid of Armed Men or Means to Ensure Impunity (Auxilio de Gente Armada).............................. 63 9. Recidivism (Reincidencia) ... 64 10. Reiteracion/Habituality... 65 11. Prize, Reward or Promise. 66 12. lInundation, Fire, Poison.. 66 13. Evident Premeditation (Premeditacion Conocida)......... 66 14. Craft (Astucia), Fraud (Fraude) or Disguise (Disfraz)..... 67 15. Superior Strength or Means to Weaken Defense................. 68 16. Treachery (Alevosia) ...... 69 17. Ignominy .................... 70 18. Unlawful Entry ............. 71 19. Breaking Wall, Floor, Roof 71 20. With Aid of Persons Under 15; By Motor Vehicle ............... 71 21. Cruelty ...................... 71 E. Alternative Circumstances ........ 75 1. Relationship ...................... 75 2. Intoxication....................... 76 3. Degree of Instruction/ Education 76 F. Absolutory Causes .................. 76 1. Instigation ........................ 76 2. Pardon ............................. 77 3. Other Absolutory Causes........ 77 4. Acts Not Covered By Law And In Case Of Excessive Punishment ....... 77 CHAPTER IV.PERSONS CRIMINALLY LIABLE/DEGREE OF PARTICIPATION .....78 A. PrincipalsError! Bookmark not defined. 1. By Direct Participation .......... 78 2. By Inducement ................... 79 3. By Indispensable Cooperation.. 79 B. Accomplices ......................... 79 C. Accessories........................... 80 CHAPTER V. PENALTIES....................83 A. General Principles .................. 83 1. Purposes........................... 84 2. Classification ..................... 84 3. Duration and Effect.............. 84 B. Penalties which may be imposed . 84 1. Scale of Principal Penalties .... 84 2. Scale of Accessory Penalties ... 85 C. Specific Principal And Accessory Penalties ................................... 86 1. Afflictive penalties .............. 86 1. Reclusion Perpetua .............. 86 2. Reclusion Temporal........... 87 3. Prision mayor .................. 87 1. Correctional penalties........... 87 1. Prision Correccional ............. 87 2. Arresto Mayor.................. 87 3. Light penalties ................... 89 1. Arresto Menor .................... 89 2. Public Censure................. 89 4. Penalties common to afflictive, correctional, and light penalties .... 89 1. Fine ................................ 89 2. Bond to Keep the Peace ........ 89 D. Accessory penalties................. 90 1. Perpetual or Temporary Absolute Disqualification ........................ 90 2. Perpetual or Temporary Special Disqualification ............ 91
  • 6. CRIMINAL LAW REVIEWER 6 3. Suspension from Public Office, the Right to Vote and Be Voted for, the Right to Practice a Profession or Calling................................... 91 4. Civil Interdiction.............. 91 5. Indemnification or Confiscation of Instruments or Proceeds of the Offense............................... 91 6. Payment of Costs ............. 91 Perpetual or Temporary Special Disqualification ........................... 92 E. Measures not considered penalty 92 F. Application .......................... 93 1. Indeterminate Sentence Law (R.A. 4013, as amended) ............. 94 2. The Three-fold rule ............. 96 3. Subsidiary imprisonment........ 97 G. Special rules for certain situations 104 1. Complex Crimes.................104 2. Crimes Different from That Intended ...............................105 3. Where the Offender Is Below 18 Years ...................................106 H. Execution and Service ............107 1. Probation Law (P.D. 968, as amended) ..............................108 CHAPTER VI. MODIFICATION AND EXTINCTION OF CRIMINAL LIABILITY .. 113 A. Prescription of crimes (Art. 90) .113 B. Prescription of penalties (Art. 92) 114 C. Pardon by the offended party ...115 D. Pardon by the Chief Executive...115 E. Amnesty.............................115 Criminal Law 2 Title I. Crimes against National Security and the Law of Nations.................. 155 A. Crimes against Security...........155 1. Article 114 – Treason...........155 2. Article 115 - Conspiracy and Proposal to Commit Treason........156 3. Article 116 - Misprision of Treason.................................156 4. Article 117 – Espionage.........157 B. Crimes against the Law of Nations 157 1. Article 118 - Inciting to War or Giving Motives for Reprisals .........157 2. Article 119 - Violation of Neutrality ..............................157 3. Article 120 - Correspondence with Hostile Country .................157 4. Article 121 - Flight to Enemy's Country.................................157 5. Article 122 - Piracy in General and Mutiny on the High Seas or in Philippine Waters .....................157 6. Article 123 - Qualified Piracy.158 Title II. Crimes against Fundamental Laws of the State ................................ 158 1. Article 124 - Arbitrary Detention 158 2. Article 125 - Delay in the Delivery of Detained Persons to the Proper Judicial Authorities...................159 3. Article 126 - Delaying Release 159 4. Article 127 – Expulsion .........160 5. Article 128 - Violation of Domicile 160 6. Article 129 - Search Warrants Maliciously Obtained, and Abuse in the Service of Those Legally Obtained .160 7. Article 130 - Searching Domicile without Witnesses ....................161 8. Article 131 - Prohibition, Interruption and Dissolution of Peaceful Meetings ....................161 9. Article 132 - Interruption of Religious Worship .....................161 10. Article 133 - Offending the Religious Feelings.....................162 Title III. Crimes against Public Order . 162 A. Chapter I – Rebellion, Coup d‘etat, Sedition and Disloyalty..................162 1. Article 134 - Rebellion /Insurrection ..........................162 2. Article 134-A - Coup d‘ État...163 3. Article 135 - Penalty for Rebellion, Insurrection or Coup d‘ État 163
  • 7. CCCRRRIIIMMMIIINNNAAALLL LAW4. Article 136 - Conspiracy and Proposal to Commit Coup d‘ État, Rebellion or Insurrection ............164 5. Article 137 - Disloyalty of Public Officers or Employees................164 6. Article 138 - Inciting to Rebellion or Insurrection ........................164 7. Article 139 - Sedition...........164 8. Article 140 - Persons Liable for Sedition ................................165 9. Article 141 - Conspiracy to Commit Sedition ......................165 10. Article 142 – Inciting to Sedition ................................165 B. Chapter II - Crimes against Popular Representation...........................166 1. Article 143 - Acts Tending to Prevent the Meeting of the Congress of the Philippines and Similar Bodies 166 2. Article 144 - Disturbance of Proceedings............................166 3. Article 145 - Violation of Parliamentary Immunity.............166 C. Chapter III – Illegal Assemblies and Associations ..............................166 1. Article 146 - Illegal Assemblies 166 2. Article 147 - Illegal Associations 167 D. Chapter IV - Assault upon and Resistance and Disobedience to, Persons in Authority and Their Agents .........167 1. Article 148 - Direct Assault....167 2. Article 152 - Persons in Authority and Agents of Persons in Authority 168 3. Article 149 - Indirect Assault..168 4. Article 150 - Disobedience to Summons Issued by Congress, Its Committees or Subcommittees, by the Constitutional Commissions, Its Committees, Subcommittees or Divisions................................168 5. Article 151 - Resistance and Disobedience to a Person in Authority or the Agents of Such Persons ......168 E. Chapter V - Public Disorders .....169 1. Article 153 - Tumults and Other Disturbances of Public Order........169 2. Article 154 - Unlawful Use of Means of Publication and Unlawful Utterances .............................169 3. Article 155 - Alarms and Scandals 169 4. Article 156 - Delivering Persons from Jail ...............................170 F. Chapter VI - Evasion of Service of Sentence ..................................170 1. Article 157 - Evasion of Service of Sentence ...............................170 2. Article 158 - Evasion of Service of Sentence on the Occasion of Disorders, Conflagrations, Earthquakes, or Other Calamities ..171 3. Article 159 - Other Cases of Evasion of Service of Sentence .....171 G. Chapter VII - Commission of Another Crime during Service of Penalty Imposed for Another Previous Offense ..........171 1. Article 160 - Quasi Recidivism 171 H. Title IV. Crimes against Public Interest....................................171 1. Acts of Counterfeitin ...........172 1. Article 161 - Counterfeiting the Great Seal of the Government of the Philippine Islands, Forging the Signature or Stamp of the Chief Executive...............................172 2. Article 162 - Using Forged Signature or Counterfeit Seal or Stamp................................172 3. Article 163 - Making and Importing and Uttering False Coins 172 4. Article 164 - Mutilation of Coins.................................173 5. Article 165 - Selling of False or Mutilated Coin, Without Connivance 173
  • 8. CRIMINAL LAW REVIEWER 8 6. Article 166 - Forging Treasury or Bank Notes or Other Documents Payable to Bearer; Importing and Uttering Such False or Forged Notes and Documents.....................173 7. Article 167 - Counterfeiting, Importing, and Uttering Instruments Not Payable to Bearer ............174 2. Acts of Forgery..................174 1. Article 168 - Illegal Possession and Use of False Treasury or Bank Notes and Other Instruments of Credit 174 2. Article 169 - How Forgery is Committed.............................174 3. Acts of Falsification ............174 1. Article 170 - Falsification of Legislative Documents ...............174 2. Article 171 - Falsification by Public Officer, Employee or Notary or Ecclesiastical Minister .........175 3. Article 172 - Falsification by Private Individual and Use of Falsified Documents...............177 4. Article 173 - Falsification of Wireless, Cable, Telegraph and Telephone Messages, and Use of Said Falsified Messages ...........178 5. Article 174 - False Medical Certificates, False Certificates of Merits or Service, etc. ............178 6. Article 175 - Using False Certificates.........................178 7. Article 176 - Manufacturing and Possession of Instruments or Implements for Falsification .....179 4. OTHER FALSITIES................179 1. Article 177 - Usurpation of Authority or Official Functions .....179 2. Article 178 - Using Fictitious and Concealing True Name.......179 3. Article 179 - Illegal Use of Uniforms and Insignia .............179 4. Article 180 - False Testimony Against a Defendant...............180 5. Article 181 - False Testimony Favorable to the Defendant......180 6. Article 182 - False Testimony in Civil Cases .......................180 7. Article 183 - False Testimony in Other Cases and Perjury in Solemn Affirmation ................180 8. Article 184 - Offering False Testimony in Evidence ............181 9. Article 185 - Machinations in Public Auctions.....................181 10. Article 186 – Monopolies and Combinations in Restraint of Trade 181 11. Article 187 – Importation and Disposition of Falsely Marked Articles or Merchandise Made of Gold, Silver, or other Precious Metals or their Alloys..............182 Title V. Crimes Relative to Opium and Other Prohibited Drugs .................. 182 A. Acts Punished:......................182 B. Penalties for Unlawful Acts: .....182 C. Definition of Important Terms ...183 D. Other Important Points ...........183 Title VI. Crimes against Public Morals 184 CHAPTER I: Gambling and Betting.....184 A. Chapter I - Gambling and Betting 184 1. Article 195 - What Acts Are Punishable in Gambling ..............184 2. Article 196 - Importation, Sale and Possession of Lottery Tickets or Advertisements........................185 3. Article 197 – Betting in Sports contents................................185 4. Article 198 - Illegal Betting on Horse Race.............................185 5. Article 199 (as amended by PD 449) 186 B. Chapter II. Offenses against Decency and Good Customs ............186 0.........................................186 1. Article 200 - Grave Scandal ...186 2. Article 201 - Immoral Doctrines, Obscene Publications and Exhibitions and Indecent Shows ..................186 3. Article 202 - Vagrancy and Prostitution ............................187 Title VII. Crimes Committed by Public Officers ..................................... 188
  • 9. CCCRRRIIIMMMIIINNNAAALLL LAWA. Chapter I: Preliminary Provisions189 B. Chapter II: Malfeasance and Misfeasance in Office ...................189 1. Article 204 - Knowingly Rendering Unjust Judgment .....................189 2. Article 205 - Judgment Rendered Through Negligence ..................189 3. Article 206 - Unjust Interlocutory Order ...................................190 4. Article 207 - Malicious Delay in the Administration of Justice.......190 5. Article 208 - Prosecution of Offenses; Negligence and Tolerance 190 6. Article 209 – Betrayal of Trust by an Attorney or a Solicitor – Revelation of Secrets..............................190 7. Article 210 - Direct Bribery....191 8. Article 211 - Indirect Bribery .191 9. Article 211-A - Qualified Bribery 192 10. Article 212 - Corruption of Public Officials........................192 C. Chapter III: Frauds and Illegal Exactions and Transactions ............192 1. Article 213 - Fraud against the Public Treasury and Similar Offenses 192 2. Article 214 - Other Frauds.....193 3. Article 215 - Prohibited Transactions...........................193 4. Article 216 - Possession of Prohibited Interest by a Public Officer 194 D. Chapter IV: Malversation of Public Funds or Property .......................194 1. Article 217 - Malversation of Public Funds or Property - Presumption of Malversation........194 2. Article 218 - Failure of Accountable Officer to Render Accounts ...............................195 3. Article 219 - Failure of a Responsible Public Officer to Render Accounts Before Leaving the Country 195 4. Article 220 - Illegal Use of Public Funds or Property.....................195 5. Article 221 - Failure to Make Delivery of Public Funds or Property 196 6. Article 222 - Officers Included in the Preceding Provisions.............196 E. Chapter V: Infidelity of Public Officers....................................196 1. Article 223 - Conniving With or Consenting to Evasion ................196 2. Article 224 - Evasion through Negligence .............................196 3. Article 225 - Escape of Prisoner under the Custody of a Person Not a Public Officer..........................196 4. Article 226 - Removal, Concealment, or Destruction of Documents .............................197 5. Article 227 - Officer Breaking Seal 197 6. Article 228 - Opening of Closed Documents .............................197 7. Article 229 - Revelation of Secrets by an Officer.................197 8. Article 230 - Public Officers Revealing Secrets of Private Individuals .............................198 F. Chapter VI: Other Offenses or Irregularities by Public Officers .......198 1. Article 231 - Open Disobedience 198 2. Article 232 - Disobedience to the Order of Superior Officer When Said Order Was Suspended by Inferior Officer..................................198 3. Article 233 - Refusal of Assistance 198 4. Article 234 - Refusal to Discharge Elective Office ........................198 5. Article 235 - Maltreatment of Prisoners ...............................199 6. Article 236 - Anticipation of Duties of a Public Officer............199 7. Article 237 - Prolonging Performance of Duties and Powers.199
  • 10. CRIMINAL LAW REVIEWER 10 8. Article 238 - Abandonment of Office or Position .....................199 9. Article 239 - Usurpation of Legislative Powers....................199 10. Article 240 - Usurpation of Executive Functions..................200 11. Article 241 - Usurpation of Judicial Functions ....................200 12. Article 242 - Disobeying Request for Disqualification ........200 13. Article 243 - Orders or Request by Executive Officer to Any Judicial Authority...............................200 14. Article 244 - Unlawful Appointments .........................200 15. Article 245 - Abuses against Chastity ................................200 Title VIII. Crimes against Persons...... 201 A. Chapter I: Destruction of Life....201 1. Article 246 - Parricide .........201 2. Article 247 - Death or Physical Injuries Under Exceptional Circumstances.........................202 3. Article 248 - Murder............202 4. Article 249 - Homicide .........203 5. Article 250 - Penalty for Frustrated Parricide, Murder or Homicide...............................204 6. Article 251 - Death Caused in Tumultuous Affray....................204 7. Article 252 - Physical Injuries Caused in Tumultuous Affray .......204 8. Article 253 - Giving Assistance to Suicide .................................204 9. Article 254 - Discharge of Firearms ...............................204 10. Article 255 - Infanticide ....205 11. Article 256 - Intentional Abortion................................205 12. Article 257 - Unintentional Abortion................................205 13. Article 258 - Abortion Practiced by the Woman Herself or by Parents.................................206 14. Article 259 - Abortion by a Physician or Midwife and Dispensing of Abortives...............................206 15. Article 260 - Responsibility of Participants in a Duel ................206 16. Article 261 - Challenging to a Duel 206 B. Chapter II: Physical Injuries ......207 1. Article 262 - Mutilation ........207 2. Article 263 - Serious Physical Injuries .................................207 3. Article 264 - Administering Injurious Substances or Beverages .207 4. Article 265 - Less Serious Physical Injuries .................................208 5. Article 266 - Slight Physical Injuries and Maltreatment...........208 6. Article 266-A - Rape (amended by RA 8353)................................208 Title IX. Crimes against Personal Liberty and Security ............................... 212 A. Chapter I: Crimes against Liberty 212 1. Article 267 - Kidnapping and Serious Illegal Detention.............212 2. Article 268 - Slight Illegal Detention ..............................214 3. Article 269 - Unlawful Arrest..214 4. Article 270 - Kidnapping and Failure to Return a Minor............214 5. Article 271 - Inducing a Minor to Abandon His Home....................215 6. Article 272 - Slavery............215 7. Article 273 - Exploitation of Child Labor ...................................215 8. Article 274 - Services Rendered Under Compulsion in Payment of Debt 215 B. Chapter II: Crimes against Security 216 1. Article 275 - Abandonment of Persons in Danger and Abandonment of Own Victim .........................216 2. Article 276 - Abandoning a Minor 216 3. Article 277 - Abandonment of Minor by Person Entrusted With Custody; Indifference of Parents ...216 4. Article 278 - Exploitation of Minors ..................................216 5. Article 280 - Qualified Trespass to Dwelling................................217 6. Article 281 - Other Forms of Trespass ................................218 7. Article 282 - Grave Threats....218 8. Article 283 - Light Threats.....218 9. Article 284 - Bond for Good Behavior................................219
  • 11. CCCRRRIIIMMMIIINNNAAALLL LAW10. Article 285 – Other Light Threats.................................219 11. Article 286 - Grave Coercions 219 12. Article 287 - Light Coercions 219 13. Article 288 - Other Similar Coercions ..............................220 14. Article 289 - Formation, Maintenance, and Prohibition of Combination of Capital or Labor through Violence or Threats ........220 C. Chapter III: Discovery and Revelation of Secrets ...................220 1. Article 290 - Discovering Secrets through Seizure of Correspondence220 2. Article 291 - Revealing Secrets with Abuse of Office .................221 3. Article 292 - Revelation of Industrial Secrets .....................221 Title X. Crimes against Property....... 222 A. Chapter I: Robbery in General...222 1. Article 293 - Who Are Guilty of Robbery ................................222 2. Article 294 - With Violence or Intimidation of Persons ..............223 3. Article 295 - Robbery with Physical Injuries, in an Uninhabited Place and by a Band..................223 4. Article 296 - Definition of a Band and Penalty Incurred by the Members Thereof.................................224 5. Article 297 - Attempted and Frustrated Robbery with Homicide 224 6. Article 298 - Execution of Deeds through Violence or Intimidation...224 7. Article 299 - Robbery in an Inhabited House or Public Building or Edifice Devoted to Worship .........224 8. Article 300 – Robbery in an Uninhabited Place and by a Band ..226 9. Article 302 - In an Uninhabited Place or Private Building ............226 10. Article 303 - Robbery of Cereals, Fruits or Firewood in an Inhabited Place or Private Building 226 11. Article 304 - Possession of Picklock or Similar Tools.............226 12. Article 305 - Defines False Keys 226 B. Chapter 2: Brigandage (Articles 306- 307) 226 1. Article 306 - Who Are Brigands226 2. Article 307 - Aiding and Abetting a Band of Brigands....................227 C. Chapter 3: Theft ...................227 1. Article 308 - Who Are Liable for Theft....................................227 2. Article 309 - Penalties..........228 3. Article 310 - Qualified Theft ..228 4. Article 311 - Theft of the Property of the National Library and National Museum......................230 D. Chapter 4: Usurpation.............230 1. Article 312 - Occupation of Real Property or Usurpation of Real Rights in Property.............................230 2. Article 313 - Altering Boundaries or Landmarks ..........................230 E. Chapter 5: Culpable Insolvency..230 1. Article 314 - Fraudulent Insolvency..............................230 F. Chapter 6: Swindling and Other Deceits ....................................230 1. Article 315 - Estafa .............230 a. With Unfaithfulness or Abuse of Confidence (315 par. 1(a) (b) (c))..231 b. Estafa by Means of False Pretenses or Fraudulent Acts (315 par. 2(a) (b) (c) (d) (e); BP22):.....................233 c. Through Other Fraudulent Means (315 Par 3 (a) (b) (c)) ................235 2. Article 316 - Other Forms of Swindling and Deceits ................236 3. Article 317 - Swindling of a Minor 237 4. Article 318 - Other Deceits ....237 G. Chapter 7: Chattel Mortgage.....237
  • 12. CRIMINAL LAW REVIEWER 12 1. Article 319 - Removal, Sale, or Pledge of Mortgaged Property ......237 H. Chapter 8: Arson and Other Crimes Involving Destruction....................238 I. Chapter 9: Malicious Mischief....239 1. Article 327 - Who Are Responsible 239 2. Article 328 - Special Cases of Malicious Mischief ....................239 3. Article 329 - Other Mischiefs..239 4. Article 330 - Damage and Obstruction to Means of Communication .......................239 5. Article 331 – Destroying or Damaging Statues, Public Monuments or Paintings............................239 J. Chapter 10: Exemption from Criminal Liability ........................239 1. Article 332 - Exemption from Criminal Liability in Crimes Against Property................................239 Title XI. Crimes against Chastity....... 242 1. Article 333 - Adultery ..........242 2. Article 334 - Concubinage .....242 3. Article 335 – Rape ..............243 4. Article 336 - Acts of Lasciviousness.........................243 5. Article 337 - Qualified Seduction 244 6. Article 338 - Simple Seduction245 7. Article 339 - Acts of Lasciviousness with the Consent of the Offended Party........................245 8. Article 340 - Corruption of Minors 246 9. Article 341 - White Slave Trade 246 10. Article 342 - Forcible Abduction..............................246 11. Article 343 - Consented Abduction..............................247 12. Article 344 - Prosecution of Private Offenses ......................248 13. Article 345: Civil Liability ..249 14. Article 346 – Liability of ascendants, guardians, teachers and other persons entrusted with the custody of the offended party ......249 Title XII. Crimes against the Civil Status of Persons .................................. 250 1. Article 349 - Bigamy ............251 2. Article 350 - Marriage Contracted against Provisions of Laws ...........251 3. Article 351 - Premature Marriage 251 4. Article 352 - Performance of Illegal Marriage Ceremony...........251 Title XIII. Crimes against Honor ........ 253 A. Chapter I: Libel ....................253 1. Article 353 - Definition of Libel 253 2. Article 354 - Requirement for Publicity................................254 3. Article 355 - Libel by Writing or Similar Means..........................254 4. Article 356 - Threatening to Publish and Offer to Prevent Such Publication for a Compensation ....254 5. Article 357 - Prohibited Publication of Acts Referred to in the Course of Official Proceedings (Gag Law)255 6. Article 358 - Slander............255 7. Article 359 - Slander by Deed .255 8. Article 360 - Persons Responsible for Libel ................................255 9. Article 361 - Proof of Truth ...256 10. Article 362 - Libelous Remarks 256 B. Chapter II: Incriminatory Machinations..............................256 1. Article 363 - Incriminating innocent person.......................256 2. Article 364 - Intriguing against Honor ...................................256 Title XIV. Quasi-Offenses................ 259 1. Article 365 - Imprudence and Negligence .............................259
  • 13. CRIMINAL LAW REVIEWER 13 CCCRRRIIIMMMIIINNNAAALLL LAW BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco •Mara KriskaChen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan •Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages Criminal Law 1 UP LAW BAR OPERATIONS COMMISSION BAR REVIEWER UP LAW2012 CRIMINAL LAW TEAM 2012 Faculty Editor | Prof. Jay Batongbacal Subject Heads | Camille Umali • Charmaine Sto. Domingo LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes
  • 14. Criminal Law 1 CRIMINAL LAW Criminal Law 1 Criminal Law 2 I. Fundamental Principles of Criminal Law II. Felonies III. Circumstances which affect criminal liability IV. Persons criminally liable/Degree of participation V. Penalties VI. Modification and extinction of criminal REVISED PENAL CODE/SPECIAL LAWS, PRESIDENTIAL DECREES, AND EXECUTIVE ORDERS A. Book 1 (Articles 1-99, RPC, excluding provisions on civil liability), including related Special Laws CHAPTER I. FUNDAMENTAL PRINCIPLES OF CRIMINAL LAW A. DEFINITION OF CRIMINAL LAW B. SCOPE OF APPLICATION AND CHARACTERISTICS C. CONSTITUTIONAL LIMITATIONS A. Definition of Criminal Law Criminal law is that branch of public substantive law which defines crimes, treats of their nature, and provides for their punishment. 1. Difference between Mala in Se and Mala Prohibita (ASKED TWICE IN BAR EXAMS) Mala in Se Mala Prohibita As to nature Wrong from its very nature. Wrong because it is prohibited by law As to use of good faith as defense GF a valid defense, unless the crime is the result of culpa GF is not a defense. As to WON criminal intent is an element Criminal intent is an element. Criminal intent is immaterial, BUT still requires intelligence & voluntariness As to degree of accomplishment Degree of accomplish 0. The of crime ment is taken into account for the punishment. act gives rise to a crime only when consu mmat ed. As to mitigating and aggravating circumstances They are taken into account in imposing penalty They are not taken into account. As to degree of participation When there is more than one offender, the degree of participation of each in the commission is taken into account. Degree of participation is generally not taken into account. All who participated in the act are punished to the same extent. As to stage of accomplishment Penalty is computed on the basis of whether he is a principal offender or merely an accomplice or accessory Penalty on offenders is same whether they acted as mere accomplices or accessories As to what laws are violated Generally, the RPC. Generally, special laws. Note:  Dolo is not required in crimes mala prohibita.  In those crimes which are mala prohibita, the act alone irrespective of its motives, constitutes the offense.  Good faith and absence of criminal intent are not valid defenses in crimes mala prohibita. Estrada v. Sandiganbayan (2001): Estrada is challenging the plunder law. One of the issues he raised is whether plunder is a malum prohibitum or malum in se. Held: Plunder is a malum in se which requires proof of criminal intent. Precisely because the crimes constituting plunder are mala in se the element of mens rea must be proven in a prosecution for plunder. i. While intentional felonies are always mala in se, it does not follow that prohibited acts done in violation of special laws are always mala prohibita. ii. Even if the crime is punished under a special law, if the act punished is one which is inherently wrong, the same is malum in se, and, therefore,
  • 15. CRIMINAL LAW REVIEWER 15 good faith and the lack of criminal intent are valid defenses; unless it is the product of criminal negligence or culpa. Likewise when the special laws require that the punished act be committed knowingly and willfully, criminal intent is required to be proved before criminal liability may arise. Note: Where malice is a factor, good faith is a defense. CRIMINAL LAW VS. CRIMINAL PROCEDURE Criminal Law Criminal Procedure It is substantive. It is remedial. Prospective in application. Exception: If it is favorable to the accused. Exception To The Exception: 1.When the accused is a habitual delinquent. (Art. 22) 2.Where the new law expressly made inapplicable to pending actions or existing causes of actions. (Tavera v. Valdez) Retroactive in application. Statutory; it is passed by the Legislature. May be promulgated by the Legislature (e.g. jurisdiction of courts) or the Judiciary (e.g. Rules of Court) STATE AUTHORITY TO PUNISH CRIME (ASKED ONCE IN BAR EXAMS) Art. II, Sec. 5 (1987 Constitution) Declaration of Principles and State Policies. The maintenance of peace and order, the protection of life, liberty and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. SOURCES OF CRIMINAL LAW a. The Revised Penal Code (Act No. 3815) - Created pursuant to Administrative Order No. 94; enacted January 1, 1932; based on the Spanish Penal Code, US Penal Code, and Phil. Supreme Court decisions. b. Special penal laws and penal Presidential Decrees issued during Martial Law. PENAL LEGISLATION a. Schools of Thought (ASKED ONCE IN BAR EXAMS) (PUCE) (1) Utilitarian Theory Primary purpose: Protection of society from actual or potential wrongdoers. (2) Classical Theory Primary purpose: Retribution. Basis of criminal liability: Human free will. Endeavored to establish a mechanical and direct proportion between crime and penalty; there is scant regard to human element. (3) Positivist Theory Primary purpose: Reformation; prevention/ correction. Basis of criminal liability: The sum of the social, natural and economic phenomena to which the actor is exposed. (4) Eclectic/Mixed Combines both positivist and classical thinking. Crimes that are economic and social by nature should be dealt with in a positivist manner; thus, the law is more compassionate. Heinous crimes should be dealt with in a classical manner; thus, capital punishment. Note: The Revised Penal Code today follows the mixed or eclectic philosophy. For example:  Intoxication of the offender is considered to mitigate his criminal liability, unless it is intentional or habitual;  Age of the offender is considered;  A woman who killed her child to conceal her dishonor has in her favor a mitigating circumstance. RELATION OF RPC TO SPECIAL LAWS: SUPPLETORY APPLICATION OF RPC Art. 10, RPC. Offenses not subject to the provisions of this Code. – Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. General Rule: RPC provisions supplement the provisions of special laws. Exceptions: (1) Where the special law provides otherwise (Art.10) (2) When the provisions of the Code are impossible of application, either by express provision or by necessary implication, as in those instances where the provisions in question are peculiar to the Code. (Regalado, Criminal Law Prospectus) Ladonga v People (2005): Spouses Ladonga were convicted by the RTC for
  • 16. CRIMINAL LAW REVIEWER 16 violation of B.P. Blg. 22 (3 counts). The husband applied for probation while the wife appealed arguing that the RTC erred in finding her criminally liable for conspiring with her husband as the principle of conspiracy is inapplicable to B.P. Blg. 22 which is a special law. Held: 1. B.P. Blg. 22 does not expressly prescribe the suppletory application of the provisions of the RPC. 2. Thus, in the absence of contrary provision in B.P. Blg. 22, the general provisions of the RPC which, by their nature, are necessarily applicable, may be applied suppletorily. 3. The court cited the case of Yu vs. People, where the provisions on subsidiary imprisonment under Art. 39 of the RPC to B.P. Blg. 22 was applied suppletorily. People vs. Rodriguez (1960): It was held that a violation of a special law can never absorb a crime punishable under the Revised Penal Code, because violations of the Revised Penal Code are more serious than a violation of a special law. But a crime in the Revised Penal Code can absorb a crime punishable by a special law if it is a necessary ingredient of the felony defined in the Code. People vs. Martinada: The crime of cattle-rustling is not malum prohibitum but a modification of the crime of theft of large cattle. So Presidential Decree No. 533, punishing cattle- rustling, is not a special law, but a law amending provisions of the RPC (Arts. 309 and 310). It can absorb the crime of murder. If in the course of cattle rustling, murder was committed, the offender cannot be prosecuted for murder. Note: Murder would be a qualifying circumstance in the crime of qualified cattle rustling.1 B. Scope of Application and Characteristics of the Philippine Criminal Law 1. GENERALITY (WHO?) 2. TERRITORIALITY (WHERE?) 3. PROSPECTIVITY (WHEN?) Criminal law has three (3) characteristics: General, Territorial, and Prospective. 1 Sec. 8, P.D. No. 533 1. Generality General Rule: Art. 14, NCC. The penal law of the country is binding on all persons who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. Limitations: Art. 2, RPC. ―Except as provided in the treaties or laws of preferential application xxx‖ a. Treaty Stipulations Examples:  Bases Agreement entered into by the Philippines and the US on Mar. 14, 1947 and expired on Sept. 16, 1991.  Visiting Forces Agreement (VFA)2 signed on Feb. 10, 1998. Article V Criminal Jurisdiction 1. Subject to the provisions of this article: (a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines. (b) United States military authorities shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction conferred on them by the military law of the United States over United States personnel in the Philippines. 2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the Philippines, punishable under the laws of the Philippines, but not under the laws of the United States. (b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the United States, punishable under the laws of the United States, but not under the laws of the Philippines. (c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to security means: (1) treason; (2) sabotage, espionage or violation of any law relating to national defense. 3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply: 2 Take note of Art. V, which defines criminal jurisdiction over United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government.
  • 17. CRIMINAL LAW REVIEWER 17 (a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United States personnel, except in cases provided for in paragraphs l (b), 2 (b), and 3 (b) of this Article. (b) United States military authorities shall have the primary right to exercise jurisdiction over United States personnel subject to the military law of the United States in relation to: (1) offenses solely against the property or security of the United States or offenses solely against the property or person of United States personnel; and (2) offenses arising out of any act or omission done in performance of official duty. (c) The authorities of either government may request the authorities of the other government to waive their primary right to exercise jurisdiction in a particular case. (d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline among their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular importance, it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities receive the United States request. (e) When the United States military commander determines that an offense charged by authorities of the Philippines against United States personnel arises out of an act or omission done in the performance of official duty, the commander will issue a certificate setting forth such determination. This certificate will be transmitted to the appropriate authorities of the Philippines and will constitute sufficient proof of performance of official duty for the purposes of paragraph 3(b)(2) of this article. In those cases where the Government of the Philippines believes the circumstances of the case require a review of the duty certificate, United States military authorities and Philippine authorities shall consult immediately. Philippine authorities at the highest levels may also present any information bearing on its validity. United States military authorities shall take full account of the Philippine position. Where appropriate, United States military authorities will take disciplinary or other action against offenders in official duty cases, and notify the Government of the Philippines of the actions taken. (f) If the government having the primary right does not exercise jurisdiction, it shall notify the authorities of the other government as soon as possible. (g) The authorities of the Philippines and the United States shall notify each other of the disposition of all cases in which both the authorities of the Philippines and the United States have the right to exercise jurisdiction. b. Laws of Preferential Application Examples:  Members of Congress are not liable for libel or slander for any speech in Congress or in any committee thereof. (Sec. 11, Art. VI, 1987 Constitution)  Any ambassador or public minister of any foreign State, authorized and received as such by the President, or any domestic or domestic servant of any such ambassador or minister are exempt from arrest and imprisonment and whose properties are exempt from distraint, seizure and attachment.3 (R.A. No. 75)  Warship Rule – A warship of another country, even though docked in the Philippines, is considered an extension of the territory of its respective country. This also applies to embassies. c. Principles of Public International Law Art. 14, NCC. ―xxx subject to the principles of public international law and to treaty stipulations.‖ The following persons are exempt from the provisions of the RPC: (1) Sovereigns and other heads of state (2) Ambassadors, ministers, plenipotentiary, minister resident and charges d‘ affaires. (Article 31, Vienna Convention on Diplomatic Relations) Note: Consuls and consular officers are NOT exempt from local prosecution. (See Article 41, Vienna Convention on Consular Relations) Public vessels of a friendly foreign power are not subject to local jurisdiction. Note: Generality has NO reference to territoriality. 2. Territoriality GENERAL RULE: Penal laws of the country have force and effect only within its territory.  It cannot penalize crimes committed outside its territory.  The territory of the country is not limited to the land where its sovereignty resides but includes also its maritime and interior waters as well as its atmosphere. (Art. 2, RPC) 3 R.A. No. 75 penalizes acts which would impair the proper observance by the Republic and inhabitants of the Philippines of the immunities, rights, and privileges of duly accredited foreign diplomatic representatives in the Philippines
  • 18. CRIMINAL LAW REVIEWER 18 (1) Terrestrial jurisdiction is the jurisdiction exercised over land. (2) Fluvial jurisdiction is the jurisdiction exercised over maritime and interior waters. (3) Aerial jurisdiction is the jurisdiction exercised over the atmosphere. EXCEPTIONS (1) Extraterritorial crimes, which are punishable even if committed outside the Philippine territory (Art. 2, RPC) (ASKED 4 TIMES IN BAR EXAMS) Art. 2 embraces two scopes of applications: General rule - Intraterritorial refers to the application of the RPC within the Philippine territory (land, air and water). Exception - Extraterritorial4 refers to the application of the Revised Penal Code outside the Philippine territory. (a) Par. 1: Crimes committed aboard Philippine ship or airship: The RPC is applied to Philippine vessels5 if the crime is committed while the ship is treading: i. Philippine waters (intraterritorial), or ii. The high seas i.e. waters NOT under the jurisdiction of any State (extraterritorial) Two rules as to jurisdiction over crimes committed aboard merchant vessels while in the territorial waters of another country (i.e. a foreign vessel treading Philippine waters OR Philippine vessels treading foreign waters): i. FRENCH RULE: It is the flag or nationality of the vessel which determines jurisdiction UNLESS the crime violates the peace and order of the host country. ii. ENGLISH RULE: the location or situs of the crime determines jurisdiction UNLESS the crime merely relates to internal management of the vessel. The Philippines adheres to the ENGLISH RULE. However, these rules are NOT applicable if the vessel is on the high seas when the crime was committed. In these cases, the laws of the nationality of the ship will always apply. When the crime is committed in a war vessel of a foreign country, the nationality of the vessel will always determine jurisdiction because war vessels are part of the sovereignty of the country to whose naval force they belong. International Theories on Aerial Jurisdiction 4 R.A. 9327 (The Human Security Act) contains provisions for extraterritorial application. 5 The country of registry determines the nationality of the vessel, NOT ITS OWNERSHIP. A Filipino-owned vessel registered in China must fly the Chinese flag. i. Free Zone Theory The atmosphere over the country is free and not subject to the jurisdiction of the subjacent state, except for the protection of its national security and public order. ii. Relative Theory The subjacent state exercises jurisdiction over the atmosphere only to the extent that it can effectively exercise control thereof. iii. Absolute Theory The subjacent state has complete jurisdiction over the atmosphere above it subject only to the innocent passage by aircraft of a foreign country. Under this theory, if the crime is committed in an aircraft, no matter how high, as long as it can be established that it is within the Philippine atmosphere, Philippine criminal law6 will govern. Note: The Philippines adopts this theory. (b) Par. 2: Forging/Counterfeiting and Coins or Currency Notes in the Philippines i. Forgery is committed abroad, and ii. It refers only to Philippine coin, currency note, obligations and securities. (c) Par. 3: Should introduce into the country the above-mentioned obligations and securities. i. The reason for this provision is that the introduction of forged or counterfeited obligations and securities into the Philippines is as dangerous as the forging or counterfeiting of the same, to the economical interest of the country. (d) Par. 4: When public officers or employees commit an offense in the exercise of their functions. Crime committed pertains to the exercise of the public official’s functions: The crimes which may be committed are: i. Direct bribery (A.210) ii. Qualified Bribery (A. 211-A) iii. Indirect bribery (A.211) iv. Corruption (A.212) v. Frauds against the public treasury (A.213) vi. Possession of prohibited interest (A.216) vii. Malversation of public funds or property (A. 217) viii. Failure to render accounts (A.218) 6 See Anti-Hijacking Law, (Other part of the reviewer)
  • 19. CRIMINAL LAW REVIEWER 19 ix. Illegal use of public funds or property (A.220) x. Failure to make delivery of public funds or property (A.221) xi. Falsification by a public officer or employee committed with abuse of his official position (A.171) xii. Those having to do with the discharge of their duties in a foreign country. The functions contemplated are those, which are, under the law: i. to be performed by the public officer; ii. in the foreign service of the Phil. government; iii. in a foreign country. (e) Par. 5: Commit any of the crimes against national security and the law of nations, (Title One, Book 2, RPC) Crimes against national security: i. Treason (A.114) ii. Conspiracy and proposal to commit treason (A.115) iii. Misprision of treason (A.116) iv. Espionage (A.117) Crimes against the law of nations: i. Inciting to war or giving motives for reprisals (A.118) ii. Violation of neutrality (A.119) iii. Correspondence with hostile country (A.120) iv. Flight to enemy‘s country (A.121) v. Piracy in general and mutiny on the high seas or in Philippine waters (A.122) Note: Crimes against public order (e.g., rebellion, coup d‘etat, sedition) committed abroad is under the jurisdiction of the host country. Terrorism is now classified as a crime against national security and the law of nations. (See R.A. 9372, otherwise known as Human Security Act of 2007). 3. Prospectivity GENERAL RULE: Acts or omissions will only be subject to a penal law if they are committed AFTER a penal law has taken effect. Conversely, acts or omissions which have been committed before the effectivity of a penal law could not be penalized by such penal law. EXCEPTION: Art. 22 RPC. Penal laws shall have a retroactive effect, insofar as they favor the person guilty of a felony who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same. Art. 62(5) RPC. xxx For the purpose of this article, a person shall be deemed to be a habitual delinquent, if within a period of 10 years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo(robbery), hurto(theft), estafa, or falsification, he is found guilty of any crimes a third time or oftener. EXCEPTION TO THE EXCEPTION: (1) The new law is expressly made inapplicable to pending actions or existing cause of actions; or (2) The offender is a habitual criminal. Effects of repeal of penal law (1) If the repeal makes the penalty lighter in the new law, (a) The new law shall be applied, (b) EXCEPT when the offender is a habitual delinquent or when the new law is made not applicable to pending action or existing causes of action. (2) If the new law imposes a heavier penalty (a) Law in force at the time of the commission of the offense shall be applied. (3) If the new law totally repeals the existing law so that the act which was penalized under the old law is no longer punishable, (a) The crime is obliterated. (b) Pending cases are dismissed. (c) Unserved penalties imposed are remitted. (4) Rule of prospectivity also applies to judicial decisions,7 administrative rulings and circulars. Co vs. CA, (1993): In this case, Circular No. 4 of the Ministry of Justice, dated December, 15, 1981, provided that ―where the check is issued as part of an arrangement to guarantee or secure the payment of an obligation, whether pre- existing or not, the drawer is not criminally liable for either estafa or violation of B.P. 22.‖ Subsequently, the administrative interpretation was reversed in Circular No. 12, issued on August 8, 1984, such that the claim that the check was issued as a guarantee or part of an arrangement to secure an obligation or to facilitate collection, is no longer a valid defense for the prosecution under B.P. 22. Hence, it was ruled that under the new circular, a check issued merely to guarantee the performance of an obligation is covered by B.P. 22 [Que vs. People]. However, consistent with the principle of prospectivity, the new doctrine should not apply to parties who had relied on the old Circular and acted on the faith thereof. No retrospective effect. 7 Art. 8, Civil Code
  • 20. CRIMINAL LAW REVIEWER 20 Rationale for the prospectivity rule: the punishability of an act must be reasonably known for the guidance of society [citing Peo v. Jabinal]. [NOTE: The SC outline does not include the next two characteristics.] 4. Legality (nullum crimen nulla poena sine lege) Art. 21. No felony shall be punishable by any penalty not prescribed by law prior to its commission. There is no crime when there is no law punishing the same. Limitation: Not every law punishing an act or omission may be valid as a criminal law. If the law punishing an act is ambiguous, it is null and void. 5. Strict Construction of Penal Laws Against State: The ―Doctrine of Pro Reo‖ Pro reo doctrine: Whenever a penal law is to be construed or applied and the law admits of two interpretations - one lenient to the offender and one strict to the offender, that interpretation which is lenient or favorable to the offender will be adopted. Basis: The fundamental rule that all doubts shall be construed in favor of the accused and presumption of innocence of the accused. Art. III, Sec. 14(2), 1987 Const. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved. Note: This is peculiar only to criminal law. EQUIPOISE RULE: When the evidence of the prosecution and the defense are equally balanced, the scale should be tilted in favor of the accused in obedience to the constitutional presumption of innocence.8 C. Constitutional limitations on the power of Congress to enact penal laws in the Bill of Rights (i) Equal protection (ii) Due process (iii)Non-imposition of cruel and unusual punishment or excessive fines (iv) Bill of attainder (v) Ex post facto law 8 Ursua v. CA (1996); Corpuz v. People (1991) 1. Equal protection Article III, Section 1, 1987 Const. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. 2. Due process Art. III, Sec. 14 (1), 1987 Const. No person shall be held to answer for a criminal offense without due process of law.  Must be general in application. 3. Non-imposition of cruel and unusual punishment or excessive fines Art III, Sec. 19, 1987 Const. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. a. Act Prohibiting the Imposition of Death Penalty in the Philippines (R.A. 9346) Republic Act 9346 An Act Prohibiting the Imposition of the Death Penalty. Repealed the law imposing lethal injection (R.A. 8177) and the law imposing the death penalty (R.A. 7659) (Sec. 1). This Act also imposes the punishment of reclusion perpetua for offenses under any act using the nomenclature of the RPC (Sec. 2 (a)) and the punishment of life imprisonment for offenses under any act which does not use the nomenclature of the RPC (Sec. 2(b)) 4. Bill of attainder Art III, Sec. 22, 1987 Const. No ex post facto law or bill of attainder shall be enacted. Bill of attainder - a legislative act that inflicts punishment without trial, its essence being the substitution of legislative fiat for a judicial determination of guilt. 5. Ex post facto law Art III, Sec. 22, 1987 Const. No ex post facto law or bill of attainder shall be enacted. Ex post facto law is one which: (1)Makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act. (2) Aggravates a crime, or makes it greater than it was, when committed;
  • 21. CRIMINAL LAW REVIEWER 21 (3)Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4)Alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; (5)Assumes to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and (6)Deprives a person accused of a crime some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (Reyes, The Revised Penal Code citing In re: Kay Villegas Kami, Inc.) Other constitutional limitations  Must not provide imprisonment for non-payment of debts or poll tax. [1987 Const. Art. III, Sec. 19 (1)]  Must not restrict other constitutional freedoms, e.g. due process, religion, free speech, and assembly. Basic Maxims in Criminal Law a. Actus Non Facit Reum, Nisi Mens Sit Rea ―The act cannot be criminal where the mind is not criminal.‖ U.S. vs. Catolico (18 Phil. 504, 508) Facts: Accused was a justice of the peace who rendered decisions for damages based on breach of contract. The defendants failed to pay the bonds required on time, so upon petition of the plaintiffs, the accursed dismissed the appeals and ordered the sums attached and delivered to plaintiffs in satisfaction of the judgment. Accused was prosecuted for malversation. Held: The general rule is that, if it is proved that the accused committed the criminal act charged, it will be presumed that the act was done with criminal intention. However, it must be borne in mind that the act from which such presumption springs must be a criminal act. In this case, the act of the accused was not unlawful. Everything he did was done in good faith under the belief that he was acting judiciously and correctly. The act of a person does not make him a criminal, unless his mind be criminal. b. Actus Me Invito Factus Non Est Meus Actus ―An act done by me against my will is not my act.‖ c. El Que Es Causa De La Causa Es Causa Del Mal Causado ―He who is the cause of the cause is the cause of the evil caused.‖  This is the rationale in par. 1 of Art. 4 which enunciates the doctrine of proximate cause. He who commits an intentional felony is responsible for all the consequences which may naturally and logically result therefrom, whether foreseen or intended or not.
  • 22. CRIMINAL LAW REVIEWER 22 CHAPTER II. FELONIES A. PRELIMINARY MATTERS B. CLASSIFICATION OF FELONIES C. ELEMENTS OF CRIMINAL LIABILITY D. IMPOSSIBLE CRIME E. STAGES OF EXECUTION F. CONSPIRACY AND PROPOSAL G MULTIPLE OFFENDERS H. COMPLEX CRIME AND SPECIAL COMPLEX CRIMES A. Preliminary matters 1. Differentiating Felonies, Offense, Misdemeanor and Crime Felony: refers only to violations of the Revised Penal Code.  A crime punishable under a special law is not referred to as a felony. ―Crime‖ or ―offense‖ are the proper terms. (ASKED 3 TIMES IN BAR EXAMS) Importance: There are certain provisions in the Revised Penal Code where the term ―felony‖ is used, which means that the provision is not extended to crimes under special laws. Example: Art. 160. Quasi-Recidivism: ―A person who shall commit a felony after having been convicted by final judgment, before beginning to serve sentence or while serving the same, shall be punished under the maximum period of the penalty.‖ Note that the word ―felony‖ is used. Offense: A crime punished under a special law is called a statutory offense. Misdemeanor: A minor infraction of the law, such as a violation of an ordinance. Crime: Whether the wrongdoing is punished under the Revised Penal Code or under a special law, the generic word ―crime‖ can be used. 1. Felonies: How Committed Art. 3. Definitions (RPC) — Acts and omissions punishable by law are felonies (delitos). Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa). There is deceit when the act is performed with deliberate intent; and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. Intentional Felony v. Culpable Felony Intentional Culpable Act is malicious. Not malicious. With deliberate intent. Injury caused is unintentional, being just an incident of another act performed without malice. Has intention to cause an injury. Wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. 2. How is Criminal Liability Incurred? Art. 3 describes the manner of incurring criminal liability under the Revised Penal Code.  Intentional felony v. Culpable Felony. – It means performing or failing to do an act, when either is punished by law, by means of deceit (with dolo) or fault (with culpa)  It is important to note that if the criminal liability arises from an omission, such as misprision of treason or abandonment of helpless persons, there must be a law requiring the performance of such act.  In Par. 1 of Art. 4, the law uses the word ―felony,‖ that whoever commits a felony incurs criminal liability.  Par. 2 of Art. 4 makes a person liable even if the accomplishment of his crime is inherently impossible.  Art. 6 also provides for liability for the incomplete elements of a crime.  There are certain felonies committed by conspiring in or proposing the commission of certain acts, the principle behind this can be found in Art. 8.  Plural crimes on the other hand are discussed under Art. 48. Requisites of Dolo or Malice (1) He must have FREEDOM while doing an act or omitting to do an act. (2) He must have INTELLIGENCE while doing/omitting an act. (3) He must have INTENT while doing/omitting the act. (a) Intent which is a mental process presupposes the exercise of freedom and the use of intelligence. (b) If an act is proven to be unlawful, then intent will be presumed prima facie. (U.S. v. Apostol) (c) An honest mistake of fact destroys the presumption of criminal intent which arises from the commission of a felonious act. (People v. Oanis) General v. Specific Intent In some particular felonies, proof of specific intent is required. In certain crimes against property, there
  • 23. CRIMINAL LAW REVIEWER 23 must be intent to gain (Art. 293 – robbery, Art 308 – theft). Intent to kill is essential in attempted and frustrated homicide (Art 6 in relation to Art 249), as well as in murder. In forcible abduction (Art. 342), specific intent of lewd designs must be proved. Requisites of Culpa (1) He must have FREEDOM while doing/omitting to do an act (2) He must have INTELLIGENCE while doing the act/omitting to do an act (3) He is IMPRUDENT, NEGLIGENT, or LACKS FORESIGHT or SKILL while doing the act/omitting to do an act. 3. Discussion of Article 5 Art. 5 RPC. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. 1) Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, 2) it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of legislation. 3) In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, 4) when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense. Art. 5 covers two situations: a. Where the court cannot convict the accused because the act he committed is not punishable under the law, but the court deems it proper to repress such act.  The proper judgment is acquittal.  The judge must report to the Chief Executive that said act be made subject of penal legislation and the reasons therefore. b. Where the court after trial finds the accused guilty, and the penalty prescribed for the crime appears too harsh considering the conditions surrounding the commission of the crime,  The judge should impose the law (not suspend the execution of the sentence).  The most that he could do is recommend to the Chief Executive to grant executive clemency. 4. Wrongful Act Different from that Intended When a person commits a felony with malice, he intends the consequences of his felonious act. Art. 4. RPC. Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. xxx xxx xxx Rationale: el que es causa de la causa es causa del mal causado (he who is the cause of the cause is the cause of the evil caused). Requisites: (1) An intentional felony has been committed. (a) The felony committed should be one committed by means of dolo (with malice) because Art. 4, Par. 1 speaks of wrongful act done different from that which he intended. (b) The act should not be punished by a special law because the offender violating a special law may not have the intent to do an injury to another. (c) No felony is committed when: i. the act or omission is not punishable by the RPC, ii.the act is covered by any of the justifying circumstances enumerated in Art. 11. (2) The wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the offender. (a) Proximate Cause - That cause, which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury without which the result would not have occurred. Criminal liability exists from the concurrence of the mens rea and the actus reus. Illustration: Dave and JR are supposed to meet in Audrey‘s home but when JR arrived Dave was not home. JR received an SMS from Dave telling the former to get the house key from under the doormat. Dave lets himself in and saw an iPod on the table. JR took the iPod. What is JR’s criminal liability? He is liable only for theft and not robbery because the intent to gain concurred only with the act of taking BUT NOT with the act of using the owner‘s keys to enter the house. Note: Criminal liability for some felonies arises only upon a specific resulting harm: (1) HOMICIDE AND ITS QUALIFIED FORMS requires DEATH of the victim to be consummated. (2) ESTAFA: requires that the victim incur damage for criminal liability for the consummated felony to arise Vda. De Bataclan v. Medina (1957): SC laid down the definition of proximate cause: ―that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more
  • 24. CRIMINAL LAW REVIEWER 24 comprehensively, 'the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.‖ GENERAL RULE: The offender is CRIMINALLY LIABLE for ALL the natural and logical consequences of his felonious act, although not intended, if the felonious act is the proximate cause of the resulting harm. Thus, the person is still criminally liable although the wrongful act done be different from that which he intended in the following cases: (1) Error in personae - mistake in the identity of the victim; injuring one person mistaken for another (Art. 49 – penalty for lesser crime in its maximum period) (a) At least two subjects (b) A has intent to kill B, but kills C (c) Under Art. 3, if A hits C, he should have no criminal liability. But because of Art. 4, his act is a felony. (2) Aberratio ictus - mistake in the blow; when offender intending to do an injury to one person actually inflicts it on another (Art. 48 on complex crimes – penalty for graver offense in its maximum period) (a) There is only one subject. (b) The intended subject is a different subject, but the felony is still the same. (3) Praeter intentionem - injurious result is greater than that intended (Art. 13 – mitigating circumstance) (a) If A‘s act constitutes sufficient means to carry out the graver felony, he cannot claim praeter intentionem. Proximate Cause v. Immediate Cause v. Remote Cause Illustrations: A, B, C, D, and E were driving their vehicles along Ortigas Ave. A‘s car was ahead, followed by those of B, C, D, and E. When A‘s car reached the intersection of EDSA and Ortigas Avenue, the traffic light turned red so A immediately stepped on his brakes, followed by B, C, and D. However, E was using his cellphone and therefore was not aware that the traffic light had turned to red, so he bumped the car of D, then D hit the car of C, then C hit the car of B, then, finally, B hit the car of A. In this case, the immediate cause of the damage to the car of A is the car of B, but that is not the proximate cause. The proximate cause is the negligence of E (using his cellphone while driving) because it sets into motion the collision of all the cars. US v. Valdez (1921): The deceased is a member of the crew of a vessel. Accused is in charge of the crew members engaged in the loading of cargo in the vessel. Because the offended party was slow in his work, the accused shouted at him. The offended party replied that they would be better if he would not insult them. The accused resented this, and rising in rage, he moved towards the victim, with a big knife in hand threatening to kill him. The victim believing himself to be in immediate peril threw himself into the water. The victim died of drowning. The accused was prosecuted for homicide. His contention that his liability should be only for grave threats since he did not even stab the victim, that the victim died of drowning, and this can be considered as a supervening cause. Held: The deceased, in throwing himself into the river, acted solely in obedience to the instinct of self- preservation, and was in no sense legally responsible for his own death. As to him, it was but the exercise of a choice between two evils, and any reasonable person under the same circumstance might have done the same. This case illustrates that proximate cause does not require that the offender needs to actually touch the body of the offended party. It is enough that the offender generated in the mind of the offended party an immediate sense of danger that made him place his life at risk. In this case, the accused must, therefore, be considered the author of the death of the victim. Urbano v. IAC (1988): A and B had a quarrel and A started to hack B with a bolo. B was wounded at the back. Upon intervention, the two settled their differences. A agreed to shoulder all the expenses for the treatment of the wound of B, and to pay him also whatever loss of income B may have suffered. B, on the other hand, signed a statement of his forgiveness towards A and on that condition, he withdrew the complaint that he filed against A.
  • 25. CRIMINAL LAW REVIEWER 25 After so many weeks of treatment in a clinic, the doctor pronounced that the wound was already healed. Thereafter, B went back to his farm. A month later, B came home and was chilling. Before midnight, he died out of tetanus poisoning. The heirs of B filed a case of homicide against A. Held: The Supreme Court held that A is not liable. A, if at all, is only liable for the physical injuries inflicted upon B. The Court took into account the incubation period of tetanus toxic. Medical evidence was presented, that tetanus toxic is good only for two weeks. If, indeed, the victim had incurred tetanus poisoning out of the wound inflicted by A, he would not have lasted for around a month (22 days). What brought about the tetanus to infect his body was his work in the farm using his bare hands. The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused. However, the act of B working in his farm where the soil is filthy, using his own hands, is an efficient supervening cause which relieves A of any liability for the death of B. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure to take necessary precautions, with tetanus may have been the proximate cause of Javier's death with which the petitioner had nothing to do. The felony committed is not the proximate cause of the resulting injury when: (1)There is an active force that intervened between the felony committed and the resulting injury, and the active force is a distinct act or fact absolutely foreign from the felonious act of the accused; or (2)The resulting injury is due to the intentional act of the victim. The following are not efficient intervening cause: (1)The weak or diseased physical condition of the victim, as when one is suffering from tuberculosis or heart disease. (People v. Illustre). (2)The nervousness or temperament of the victim, as when a person dies in consequence of an internal hemorrhage brought on by moving about against the doctor‘s orders, because of his nervous condition due to the wound inflicted on the accused. (People v. Almonte). (3)Causes which are inherent in the victim, such (a) the victim not knowing to swim and (b) the victim being addicted to tuba drinking. (People v. Buhay and People v. Valdez). (4)Neglect of the victim or third person, such as the refusal by the injured party of medical attendance or surgical operation, or the failure of the doctor to give anti-tetanus injection to the injured person. (U.S. v. Marasigan). (5)Erroneous or unskillful medical or surgical treatment, as when the assault took place in anu outlaying barrio where proper modern surgical service was not available. (People v. Moldes). 5. Omission It is inaction, the failure to perform a positive duty which a person is bound to do. There must be a law requiring the doing or performing of an act. Punishable omissions in the RPC: (1) Art. 116: Misprision of treason. (2) Art. 137: Disloyalty of public officers or employees. (3) Art. 208: Negligence and tolerance in prosecution of offenses. (4) Art. 223: Conniving with or consenting to evasion. (5) Art. 275: Abandonment of person in danger and abandonment of one‘s own victim. (6) Art. 276: Abandoning a minor. B. Classifications of Felonies FELONIES ARE CLASSIFIED AS FOLLOWS: 1. According to the manner of their commission 2. According to the stages of their execution (ASKED 9 TIMES IN BAR EXAMS) 3. According to their gravity OTHER CLASSIFICATIONS: 4. As to count 5. As to nature This question was asked in the bar examination: How do you classify felonies and how are felonies defined?  TIP: What the examiner had in mind was Articles 3, 6 and 9. Do not write the classification of felonies under Book 2 of the Revised Penal Code.  The question does not require the candidate to classify but also to define.  The purpose of classifying penalties is to bring about a proportionate penalty and equitable punishment.  The penalties are graduated according to their degree of severity. ◦ The stages (Art. 6) may not apply to all kinds of felonies. ◦ There are felonies which do not admit of division.
  • 26. CRIMINAL LAW REVIEWER 26 1. According to the Manner of Their Commission Under Art. 3, they are classified as: a. Intentional felonies or those committed with deliberate intent; and b. Culpable felonies or those resulting from negligence, reckless imprudence, lack of foresight or lack of skill. 2. According to the Stages of Their Execution Under Art. 6, they are classified as: a. Attempted b. Frustrated c. Consummated Note: The classification of stages of a felony in Article 6 are true only to crimes under the Revised Penal Code. It does NOT apply to crimes punished under special laws. However, even certain crimes which are punished under the Revised Penal Code do not admit of these stages. Related to this, classification of felonies as to: a. Formal Crimes: Crimes which are consummated in one instance. Example: ILLEGAL EXACTION under Art. 213  Mere demanding of an amount different from what the law authorizes him to collect will already consummate a crime, whether the taxpayer pays the amount being demanded or not. b. Material Felonies: crimes that have various stages of execution c. Felonies by omission: Crimes which have no attempted stage. d. Crimes which have NO FRUSTRATED STAGE: the essence of the crime is the act itself. Example: in rape, the slightest penetration already consummates the crime; the same is true for arson where the slightest burning already renders the crime complete. Valenzuela vs. People (2007): No crime of frustrated theft. Facts: A grocery boy was caught trying to abscond a box of Tide Ultrabar laundry soap from the Super Sale Club. The guards apprehended him at the store parking lot while trying to board a taxi. He claimed the theft was merely frustrated for he was not able to dispose of the goods. Held: The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate the Adiao, Dino and Empelis rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the ―free disposition of the items stolen‖ is in any way determinative of whether the crime of theft has been produced. We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. 3. According to Their Gravity Under Art. 9, felonies are classified as: a. Grave felonies or those to which the law attaches (1) the capital punishment or (2) penalties which in any of their periods are afflictive; (a) Reclusion perpetua (b) Reclusion temporal (c) Perpetual or Absolute DQ (d) Perpetual or Temporary Special DQ (e) Prision mayor (f) Fine more than P6,000 b. Less grave felonies or those to which the law punishes (1) with penalties which in their maximum period is correctional; (a) Prision correccional (b) Arresto mayor (c) Suspension (d) Destierro (e) Fines equal to or more than P200 c. Light felonies or those infractions of law for the commission of which (1) the penalty is arresto menor, or a fine not exceeding P200, or both. (ASKED 4 TIMES IN BAR EXAMS) Why is it necessary to determine whether the crime is grave, less grave or light? (1) To determine  whether these felonies can be complexed or not;  the prescription of the crime and  the prescription of the penalty. (2) In other words, these are felonies classified according to their gravity, stages and the penalty attached to them. Take note that when the Revised Penal Code speaks of grave and less grave felonies, the definition makes a reference specifically to Art. 25 of the Revised Penal Code. Do not omit the phrase ―In accordance with Art. 25‖ because there is also a classification of penalties under Art. 26 that was not applied. This classification of felony according to gravity is important with respect to the question of prescription of crimes. (3) Ex. If the penalty is a fine and exactly P200.00, it is only considered a light felony under Art. 9. If the fine is imposed as an alternative penalty or as a single penalty, the fine of P200.00 is considered a correctional penalty under Art. 26, hence a less grave penalty.
  • 27. CRIMINAL LAW REVIEWER 27 If the penalty is exactly P200.00, apply Art. 26 (with respect to prescription of penalties). It is considered as a correctional penalty and it prescribes in 10 years. If the offender is apprehended at any time within ten years, he can be made to suffer the fine. 4. As to Count Plurality of crimes may be in the form of: a. Compound Crime, b. Complex crime; and c. Composite crime. 5. As to Nature (ASKED 4 TIMES IN BAR EXAMS) a. Mala in se b. Mala prohibita Art. 10. Offenses not subject to the provisions of this Code. - Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. NOTE: Please refer to p. [1] for the table comparing mala in se and mala prohibita C. Elements of Criminal Liability 1. Elements of Felonies a. There must be an act or omission ACTUS REUS/PHYSICAL ACT to be considered as a felony, there must be an act or omission;  Act: Any kind of body movement which tends to produce some effect in the external world; includes possession.  Omission: The failure to perform a positive duty which one is bound to do under the law. It is important that there is a law requiring the performance of an act; if there is no positive duty, there is no liability. Examples: Failure to render assistance,9 failure to issue receipt or non-disclosure of knowledge of conspiracy against the government.10 Mens rea: "A guilty mind, a guilty or wrongful purpose or criminal intent."11 Sometimes referred to in common parlance as the gravamen of the offense (bullseye of the crime), or criminal or deliberate intent. 9 Art. 275. Abandonment of person in danger and abandonment of one's own victim. 10 Art. 116. Misprision of treason. 11 Black's Law Dictionary, 5th ed., p. 889 For an act to be punishable, there must be a CONCURRENCE BETWEEN THE ACT and the INTENT. b. That the act or omission must be punishable by the RPC; c. That the act is performed or the omission incurred by means of dolo or culpa. Dolo is DELIBERATE INTENT otherwise referred to as criminal intent, and must be coupled with freedom of action and intelligence on the part of the offender as to the act done by him. Liability even in the absence of criminal intent There are two exceptions to the requirement of criminal intent: (a) Felonies committed by CULPA. (infra) (b) Offenses MALA PROHIBITA. (infra) Intentional Felonies The act or omission is performed or incurred with deliberate intent (with malice) to cause an injury to another. Requisites i. Freedom Voluntariness on the part of the person who commits the act or omission. If there is lack of freedom, the offender is exempt from liability (i.e., presence of irresistible force or uncontrollable fear) ii. Intelligence Capacity to know and understand the consequences of one‘s act. This power is necessary to determine the morality of human acts, the lack of which leads to non-existence of a crime. If there is lack of intelligence, the offender is exempt from liability. (i.e., offender is an imbecile, insane or under 15 years of age) iii. Criminal intent The purpose to use a particular means to effect a result. The intent to commit an act with malice, being purely a mental state, is presumed (but only if the act committed is unlawful). Such presumption arises from the proof of commission of an unlawful act. However, in some crimes, intent cannot be presumed being an integral element thereof; so it has to be proven. Example: In frustrated homicide, specific intent to kill is not presumed but must be proven, otherwise it is merely physical injuries.
  • 28. CRIMINAL LAW REVIEWER 28 Recuerdo v. People (2006):  General criminal intent is an element of all crimes but malice is properly applied only to deliberate acts done on purpose and with design.  Evil intent must unite with an unlawful act for there to be a felony. A deliberate and unlawful act gives rise to a presumption of malice by intent.  On the other hand, specific intent is a definite and actual purpose to accomplish some particular thing. The general criminal intent is presumed from the criminal act and in the absence of any general intent is relied upon as a defense, such absence must be proved by the accused. Generally, a specific intent is not presumed. Its existence, as a matter of fact, must be proved by the State just as any other essential element. This may be shown, however, by the nature of the act, the circumstances under which it was committed, the means employed and the motive of the accused Note: If any of the elements is absent, there is no dolo. If there is no dolo, there could be no intentional felony.12 Categories of Intent General Criminal Intent Specific Criminal Intent The intention to do something wrong. The intention to commit a definite act. Presumed from the mere doing of a wrong act. Existence is not presumed. The burden is upon the wrong doer to prove that he acted without such criminal intent. Since the specific intent is an element of the crime, the burden is upon the prosecution to establish its existence. Illustration: Ernie, without any provocation, stabbed Bert. The very act of stabbing is the quantum of proof needed to establish the fact that Ernie intended to do something wrong. This is the GENERAL CRIMINAL INTENT. However, Ernie can be liable for more than one crime; thus, prosecution must establish Ernie‘s SPECIFIC INTENT in order to determine whether he planned to kill Bert or merely to inflict a whole lot of pain. Ernie can overturn the presumption of general criminal intent by proving that he was justified (infra), entitled to any exempting circumstances 12 Visbal vs. Buban (2003) (due to lack of discernment) or there was a mistake of fact (infra). If he is successful, then the presumption that he intended to do something wrong is overcome along with the need to determine specific intent. However, the result of Ernie‘s act will now determine his liability. Was his act justified that he incurs no liability? Is he entitled to any exemption? Or is his liability only mitigated? DISTINCTION Between Intent, Discernment and Motive (ASKED 4 TIMES IN BAR EXAMS) INTENT DISCERNMENT MOTIVE Determination to do a certain thing, an aim or purpose of the mind. The mental capacity to tell right from wrong. It is the moving power which impels one to do an act (ex. vengeance). Establish the nature and extent of culpability in intentional felonies. Integral to the element of intelligence, NOT intent. Generally, it is not an essential element of a crime, hence, it need not be proved for purposes of conviction (except in certain cases enumerated below) When Motive Becomes Material in Determining Criminal Liability (ASKED ONCE IN BAR EXAMS) i. When the act brings about variant crimes (e.g. kidnapping v. robbery13 ) ii. When there is doubt as to the identity of the assailant. iii. When there is the need to ascertain the truth between two antagonistic versions of the crime. iv. When the identification of the accused proceeds from an unreliable source and the testimony is inconclusive and not free from doubt. v. When there are no eyewitnesses to the crime, and when suspicion is likely to fall upon a number of persons. vi. When the evidence on the commission of the crime is purely circumstantial.  Lack of motive can aid in achieving acquittal of the accused, especially where there is doubt as to the identity of the accused.14 Illustration: Ernie came home and found his wife in a pleasant conversation with Bert, former suitor. Thereupon, he went to the kitchen, opened a drawer and pulled out a knife. He then stabbed Bert. The moving force is jealousy. 13 People v. Puno (1993) 14 People vs Hassan, 1988
  • 29. CRIMINAL LAW REVIEWER 29 The intent is presumed from the resort to the knife, so that means he desires to kill Bert, the former suitor. Ernie‘s deliberate choice of something as lethal as the knife shows the presence of intelligence because it is his very awareness of the danger which prompted his choice. This only means that he knew what is right from wrong and deliberately chose to do what is wrong. Note: Discernment does not indicate the presence of intent, merely intelligence.15 Thus, discernment is necessary whether the crime is dolo or culpa. People v. Delos Santos (2003): Delos Santos stabs Flores with a kitchen knife hitting him on the different parts of his body, inflicting upon him mortal wounds which directly caused his death. He then argues that since the prosecution witnesses testified that there was no altercation between him and Flores, it follows that no motive to kill can be attributed to him. Held: The court held that the argument of Delos Santos is inconsequential. Proof of motive is not indispensable for a conviction, particularly where the accused is positively identified by an eyewitness and his participation is adequately established. In People vs. Galano, the court ruled that in the crime of murder, motive is not an element of the offense, it becomes material only when the evidence is circumstantial or inconclusive and there is some doubt on whether the accused had committed it. In this case, the court finds that no such doubt exists, as witnesses De Leon and Tablate positively identified Delos Santos. (1) Mistake of Fact (ignorantia facti excusat) (ASKED ONCE IN BAR EXAMS) It is a reasonable misapprehension of fact on the part of the person causing injury to another. Such person is NOT criminally liable as he acted without criminal intent. Under this principle, what is involved is the lack of intent on the part of the accused. Therefore, the defense of mistake of fact is an untenable defense in culpable felonies, where there is no intent to consider. An honest mistake of fact destroys the presumption of criminal intent which arises upon the commission of a felonious act. 15 People v. Cordova 1993 Requisites: (a) That the act done would have been lawful had the facts been as the accused believed them to be; (b) That the intention of the accused in performing the act should be lawful; (c) That the mistake must be without fault or carelessness on the part of the accused. When the accused is negligent, mistake of fact is not a defense.16 US v. Ah Chong (1910): A cook who stabs his roommate in the dark, honestly mistaking the latter to be a robber responsible for a series of break-ins in the area, and after crying out sufficient warnings and believing himself to be under attack, cannot be held criminally liable for homicide. 1) Would the stabbing be lawful if the facts were really what the houseboy believed? Yes. If it was really the robber and not the roommate then the houseboy was justified. 2) Was the houseboy‘s intention lawful? Yes. He was acting out of self-preservation. 3) Was the houseboy without fault or negligence? Yes. His deliberate intent to defend himself with the knife can be determined by the fact that he cried out sufficient warnings prior to the act. Stabbing the victim whom the accused believed to be an intruder showed a mistake of fact on his part which led him to take the facts as they appear to him and was pressed to take immediate action. However, mistake of fact is NOT availing in People v. Oanis (74 Phil. 257), because the police officers were at fault when they shot the escaped convict who was sleeping, without first ascertaining his identity. (It is only when the fugitive is determined to fight the officers of law trying to catch him that killing the former would be justified) (2) Culpa (CONSTRUCTIVE INTENT) Although there is no intentional felony, there could be culpable felony. The act or omission is not malicious; the injury caused being simply the incident of another act performed without malice. The element of criminal intent is replaced by negligence, imprudence, lack of foresight or lack of skill. Is culpa merely a mode of committing a crime or a crime in itself? (a) AS A MODE 16 People v. Oanis, 1988
  • 30. CRIMINAL LAW REVIEWER 30 Under Art. 3, it is clear that culpa is just a modality by which a felony may be committed. People vs. Faller (1939): It was stated indirectly that criminal negligence or culpa is just a mode of incurring criminal liability. In this case, the accused was charged with malicious mischief. Malicious mischief is an intentional negligence under Article 327. Thus, there is no malicious mischief through simple negligence or reckless imprudence because it requires deliberateness. The Supreme Court pointed out that although the allegation in the information charged the accused with an intentional felony, yet the words feloniously and unlawfully, which are standard languages in an information, covers not only dolo but also culpa because culpa is just a mode of committing a felony. (b) AS A CRIME In Art. 365, criminal negligence is an omission which the article specifically penalizes. The concept of criminal negligence is the inexcusable lack of precaution on the part of the person performing or failing to perform an act. Art. 365 creates a distinction between imprudence and negligence; simple or reckless, one might think that criminal negligence is the one being punished. Requisites: (a) Freedom (b) Intelligence (c) Negligence, reckless imprudence, lack of foresight or lack of skill; People v. Buan (1968): The accused was driving a passenger bus. Allegedly because of his recklessness, the bus collided with a jeep injuring the passengers of the latter. A case was filed against the accused for slight physical injuries through reckless imprudence for which he was tried and acquitted. Prior to his acquittal, a case for serious physical injuries and damage to property through reckless imprudence was filed. Accused claimed that he was placed in twice in jeopardy. Held: The second case must be dismissed.  Once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for the same act.  For the essence of the quasi-offense under Art. 365 of the RPC lies in the execution of an imprudent act which would be punishable as a felony.  The law penalizes the negligent act and not the result.  The gravity of the consequences is only taken into account to determine the penalty. It does not qualify the substance of the offense.  As the careless act is single, whether the injurious result should affect one person or several persons, the offense remains one and the same, and cannot be split into different crimes and prosecutions. Negligence - Indicates deficiency of perception, failure to pay proper attention, and to use diligence in foreseeing the injury or damage impending to be caused. Usually involves lack of foresight. Imprudence - Indicates deficiency of action, failure to take the necessary precaution to avoid injury to person or damage to property. Usually involves lack of skill. Reason for punishing acts of negligence or imprudence: A man must use his common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful and prudent. DOCTRINES CONCERNING CULPABLE CRIMES (a) Emergency Rule  A person who is confronted with a sudden emergency may be left no time for thought so he must make a speedy decision based largely upon impulse or instinct. Importance: cannot be held to the same conduct as one who has had an opportunity to reflect, even though it later appears that he made the wrong decision. (b) Doctrine Of ―Last Clear Chance‖ The contributory negligence of the party injured will NOT defeat the action if it be shown that the accused might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. But: The doctrine is not applicable in criminal cases: Anuran v. Buno (1966):  The principle about the "last clear chance" ORAct of Dolo Act of Culpa INTENTIONAL CRIMINAL NEGLIGENCE (ART 365) FELONIES OR Act of Dolo Act of Culpa FELONY
  • 31. CRIMINAL LAW REVIEWER 31 would call for application in a suit between the owners and drivers of the two colliding vehicles.  It does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligation. For it would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground that the other driver was likewise guilty of negligence.  Last Clear Chance is a defense by the defendant in a damage suit against liability by transferring it to the plaintiff.  These dynamics cannot be replicated in a criminal case because: i. the liability is penal in nature and thus cannot be transferred within the same case It is not a case between two parties involved in an incident but rather between an individual and the State. (c) Rule Of Negative Ingredient This is related to the doctrine of proximate cause and applicable when certain causes leading to the result are not identifiable. This rule states that: i. The prosecution must first identify what the accused failed to do. ii. Once this is done, the burden of evidence shifts to the accused. iii. The accused must show that the failure did not set in motion the chain of events leading to the injury.17 D. Impossible Crimes Purpose of punishing impossible crimes: To suppress criminal propensity or criminal tendencies. Objectively, the offender has not committed a felony, but subjectively, he is a criminal. Requisites: (1) That the act performed would be an offense against persons or property. (2) That the act was done with evil intent.  The offender intends to commit a felony against persons or against property, and the act performed would have been an offense against persons or property.  It must be shown that the actor performed the act with the intent to do an injury to another.  However, it should not be actually performed, for otherwise, he would be liable for that felony. (3) That its accomplishment is inherently impossible, or that the means employed is either inadequate or ineffectual. 17 Carillo vs People, 1994 Inherent impossibility: The act intended by the offender is by its nature one of impossible accomplishment. There must be either (1) legal impossibility or (2) physical impossibility of accomplishing the intended act. Legal impossibility: The intended acts, even if completed, would not amount to a crime. Legal impossibility would apply to those circumstances where: a. the motive, desire and expectation is to perform an act in violation of the law; b. there is intention to perform the physical act; c. there is a performance of the intended physical act; and d. the consequence resulting from the intended act does not amount to a crime. (Intod v. CA) Physical or factual impossibility: Extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. Note: In the Philippines, impossibility of accomplishing the criminal intent is not merely a defense but an act penalized by itself. (4) That the act performed should not constitute a violation of another provision of the RPC. Illustration: The victim was tortured to death. He was later shot in the back to make it appear that he was killed while trying to escape. The accused is not a principal to an impossible crime but an accessory to the killing committed by the principal (People v. Saladino). Note: Since the offender in an impossible crime has already performed the acts for the execution of the same, there could be no attempted impossible crime. There is no frustrated impossible crime either, because the acts performed by the offender are considered as constituting a consummated offense. Felonies against persons: (a) Parricide (Art. 246) (b) Murder (Art. 248) (c) Homicide (Art. 249) (d) Infanticide (Art. 255) (e) Abortion (Arts. 256, 257, 258 and 259) (f) Duel (Arts. 260 and 261) (g) Physical injuries (Arts. 262, 263, 264, 265 and 266) (h) Rape (Art. 266- A) Felonies against property: (a) Robbery (Arts. 294, 297, 298, 299, 300, 302 and 303) (b) Brigandage (Arts. 306 and 307)
  • 32. CRIMINAL LAW REVIEWER 32 (c) Theft (Arts. 308, 310 and 311) (d) Usurpation (Arts. 312 and 313) (e) Culpable Insolvency (Art. 314) (f) Swindling and other deceits (Art. 315, 316, 317 and 318) (g) Chattel Mortgage (Art. 319) (h) Arson and other crimes involving destruction (Arts. 320, 321, 322, 323, 324, 325 and 326) (i) Malicious mischief (Arts. 327, 328, 329, 330 and 331) Modified concept of impossible crime Intod v. CA (1992):  In this case, four culprits, all armed with firearms and with intent to kill, went to the intended victim‘s house and after having pinpointed the latter‘s bedroom, all four fired at and riddled the said room with bullets, thinking that the intended victim was already there as it was about 10:00 in the evening.  It so happened that the intended victim did not come home that evening and so was not in her bedroom at that time.  Eventually the culprits were prosecuted and convicted by the trial court for attempted murder.  CA affirmed the judgment but the SC modified the same and held the petitioner liable only for the so-called impossible crime.  As a result, petitioner-accused was sentenced to imprisonment of only six months of arresto mayor for the felonious act he committed with intent to kill: this despite the destruction done to the intended victim‘s house. E. Stages of Execution Classification Under Art. 6 a. Consummated Felony When all the elements necessary for its execution and accomplishment are present; the felony is produced. b. Frustrated Felony When the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. c. Attempted Felony When the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Development of a Crime ELEMENTS OF CRIMINAL LIABILITY IMPOSSIBLE CRIME ATTEMPTED FRUSTRATED CONSUMMATED Actus Reus Lacking due to: i. inherent impossibility ii. employment of inadequate means Intervention other than own desistance; some but not all acts of execution   Mens Rea     Concurrence     Result     Causation     a. Overt act A commission of the felony is deemed commenced when the following are present: (1) There are external acts. (2) Such external acts have a direct connection with the crime intended to be committed. Overt act: Some physical activity or deed (but not necessarily physical, depending on the nature of the felony) indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. Rait v. People (2008): The Court found that the petitioner‘s acts of successfully removing victim‘s clothing and inserting his finger to the victim‘s vagina were overt or external acts in the crime of rape. The acts were clearly the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. Had it not been for the victim‘s strong physical resistance, petitioner‘s next step would, logically, be having carnal knowledge of the victim. b. Development of a crime (1) Internal acts Intent, ideas and plans; generally not punishable. The intention and act must concur. Illustration: Ernie plans to kill Bert (2) External acts
  • 33. CRIMINAL LAW REVIEWER 33 (a) Preparatory Acts  Acts tending toward the crime.  Ordinarily not punished except when considered by law as independent crimes (i.e. Art. 304 – possession of picklocks)  Proposal and conspiracy to commit a felony are not punishable except when the law provides for their punishment in certain felonies.  These acts do not yet constitute even the first stage of the acts of execution.  Intent not yet disclosed. Illustration: Ernie goes to the kitchen to get a knife. (b) Acts of Execution  Usually overt acts with a logical relation to a particular concrete offense.  Punishable under the RPC. Illustration: Ernie stabs Bert Indeterminate offense It is one where the purpose of the offender in performing an act is not certain. Its nature in relation to its objective is ambiguous. The intention of the accused must be viewed from the nature of the acts executed by him, and not from his admission. Attempted and Frustrated Felonies The difference between the attempted stage and the frustrated stage lies in: whether the offender has performed all the acts of execution for the accomplishment of a felony. Attempted Felony Frustrated Felony Acts Performed Overt acts of execution are started BUT Not all acts of execution are present All acts of execution are finished BUT Crime sought to be committed is not achieved Why Due to reasons other than the spontaneous desistance of the perpetrator Due to intervening causes independent of the will of the perpetrator Position in the Timeline Offender still in subjective phase because he still has control of his acts, including their natural cause. Offender is already in the objective phase because all acts of execution are already present and the cause of its non- accomplishment is other than the offender‘s will a. Attempted Stage Elements: (1) The offender commences the commission of the felony directly by overt acts; (2) He does not perform all the acts of execution which should produce the felony; (3) The non-performance of all acts of execution was due to cause or accident other than his own spontaneous desistance. Marks the commencement of the subjective phase: Subjective phase - That portion of the acts constituting a crime, starting from the point where the offender begins the commission of the crime to that point where he still has control over his acts including their (act‘s) natural course If between those two points, the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is merely an attempt. Illustration: The subjective phase for Ernie was from the moment he swung his arm to stab Bert up until he finished his stroke. This is the interim where he still has control of his actions. Desistance – is an absolutory cause which negates criminal liability because the law encourages a person to desist from committing a crime. But, it does not negate all criminal liability, if the desistance was made when acts done by him already resulted in a felony, The offender will still be criminally liable for the felony brought about by his act. What is negated is only the attempted stage, but there may be other felonies arising from his act. Note: Desistance is true only in the attempted stage of the felony. If the felony is already in its frustrated stage, desistance will NOT negate criminal liability. Illustration: Supposing Ernie (because he thought killing Bert was too easy a revenge) desisted mid- stroke. However, Bert felt the movement and turned. He was so shocked that he suddenly backed away and tripped over his own feet. As Bert went down, his left eye caught the sharp corner of a table causing a puncture on his eyeball rendering him completely blind on the left side.  Ernie would not be liable for attempted murder because of his desistance (regardless of his reason for doing so)  His liability would now be for serious physical injuries because his act of raising the knife was the proximate cause for Bert losing an eye.
  • 34. CRIMINAL LAW REVIEWER 34 In the attempted stage, the definition uses the word “directly.‖ The word ―directly‖ emphasizes the requirement that the attempted felony is that which is directly linked to the overt act performed by the offender, not the felony he has in his mind. People v. Lamahang (1935): The accused was arrested while he was detaching some of the wood panels of a store. He was already able to detach two panels. Held: In criminal law, since the act of removing the panel indicates only at most the intention to enter, he can only be prosecuted for trespass. There is nothing in the record to justify a concrete finding that his final objective, once he succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to commit any other offense. The removal of the paneling is just an attempt to trespass, not an attempt to rob. Although Lamahang was charged with attempted robbery, the Supreme Court held that he is only liable for attempted trespass because that is the crime that can be directly linked to his act of removing the wood panel. There are some acts which are ingredients of a certain crime, but which are, by themselves, already criminal offenses. People v. Campuhan (2000): The mother of the 4-year-old victim caught the houseboy Campuhan in the act of almost raping her daughter. The hymen of the victim was still intact. However, since it was decided in People v. Orita that entry into labia is considered rape even without rupture and full penetration of the hymen, a question arises whether what transpired was attempted or consummated rape. Held:  There was only attempted rape.  Mere touching of external genitalia by the penis is already rape.  Touching should be understood as inherently part of entry of penis penetration and not mere touching, in the ordinary sense, of the pudendum.  Requires entry into the labia, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape.  Where entry into the labia has not been established, the crime amounts to an attempted rape.  The prosecution did not prove that Campuhan‘s penis was able to penetrate victim‘s vagina because the kneeling position of the accused obstructed the mother‘s view of the alleged sexual contact. The testimony of the victim herself claimed that penis grazed but did not penetrate her organ.  There was only a shelling of the castle but no bombardment of the drawbridge yet. b. Frustrated Stage Elements (1) The offender performs all the acts of execution; (2) All the acts performed would produce the felony as a consequence; (3) But the felony is not produced; (4) By reason of causes independent of the will of the perpetrator. The end of the subjective phase and the beginning of the objective phase. Objective phase – the result of the acts of execution, that is, the accomplishment of the crime. If the subjective and objective phases have been passed there is a consummated felony. People v. Listerio (2000): Brothers Jeonito and Marlon were walking when they met a group composed of men who blocked their path and attacked them with lead pipes and bladed weapons. One stabbed Jeonito from behind. Jeonito‘s brother, Marlon, was hit on the head. Held: 1) The SC held that the crime is a frustrated felony not an attempted offense considering that after being stabbed and clubbed twice in the head as a result of which he lost consciousness and fell. Marlon's attackers apparently thought he was already dead and fled. 2) A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. 3) In other words, to be an attempted crime, the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. 4) If he has performed all the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it cannot be an attempt. Crimes which do not admit of frustrated stage (a) Rape  The essence of the crime is carnal knowledge.  No matter what the offender may do to accomplish a penetration, if there was no penetration yet, it cannot be said that the offender has performed all the acts of execution.
  • 35. CRIMINAL LAW REVIEWER 35 We can only say that the offender in rape has performed all the acts of execution when he has effected a penetration.  Once there is penetration, no matter how slight it is, the offense is consummated. People v. Orita (1990): For this reason, rape admits only of the attempted and consummated stages, no frustrated stage. (see the previously cited case of People v. Campuhan for the most recent doctrine on penetration). (b) Arson  One cannot say that the offender, in the crime of arson, has already performed all the acts of execution which could produce the destruction of the premises through the use of fire, unless a part of the premises has begun to burn.  The crime of arson is therefore consummated even if only a portion of the wall or any part of the house is burned. The consummation of the crime of arson does not depend upon the extent of the damage caused. (People v. Hernandez) (c) Bribery and Corruption of Public Officers  The manner of committing the crime requires the meeting of the minds between the giver and the receiver.  If there is a meeting of the minds, there is consummated bribery or consummated corruption.  If there is none, it is only attempted. (d) Adultery  This requires the sexual contact between two participants.  If that link is present, the crime is consummated; (e) Physical Injuries  Under the Revised Penal Code, the crime of physical injuries is penalized on the basis of the gravity of the injuries.  There is no simple crime of physical injuries. There is the need to categorize because there are specific articles that apply whether the physical injuries are serious, less serious or slight.  Thus, one could not punish the attempted or frustrated stage because one does not know what degree of physical injury was committed unless it is consummated. Illustration: When Bert lost his left eye, Ernie‘s liability was automatically for serious physical injuries. He would have no liability if the eye was intact. If the eye suffered damage due to the impact, the crime would not be frustrated nor attempted physical injuries because the RPC still considers this as a consummated physical injury, its gravity depending on the duration that it took for the damage to heal. (f) Theft  Once there is unlawful taking, theft is consummated.  Either the thing was taken or not.  Disposition of the stolen goods is not an element of theft under the RPC. Rule of thumb: Felonies that do not require any result do not have a frustrated stage. Factors in Determining the Stage of Execution of a Felony a. The manner of committing the crime; b. The elements of the crime; and c. The nature of the crime itself. These three factors are helpful in trying to pinpoint whether the crime is still in its attempted, frustrated or consummated stage. a. The Manner of Committing the Crime (1) Formal Crimes - consummated in one instant, no attempt. (a) Ex. Slander and false testimony (b) There can be no attempt, because between the thought and the deed, there is no chain of acts that can be severed. (2) Crimes consummated by mere attempt or proposal by overt act. (a) Ex. Flight to enemy‘s country (Art. 121) and corruption of minors (Art. 340) (3) Felony by omission (a) There can be no attempted stage when the felony is by omission, because the offender does not execute acts, he omits to perform an act which the law requires him to do. (4) Crimes requiring the intervention of two persons to commit them are consummated by mere agreement. (a) In bribery, the manner of committing the crime requires the meeting of the minds between the giver and the receiver. (b) When the giver delivers the money to the supposed receiver, but there is no meeting of the minds, the only act done by the giver is an attempt. (5) Material Crimes – have three stages of execution Thus, in determining the stage of some crimes, the manner of execution becomes pivotal in determining the end of the subjective phase, i.e. once the offender performs the act in the manner provided for in the law, HE IS ALREADY DEEMED TO HAVE PERFORMED EVERY ACT FOR ITS EXECUTION.
  • 36. CRIMINAL LAW REVIEWER 36 b. The Elements of the Crime (1) Along with the manner of execution, there are crimes wherein the existence of certain elements becomes the factor in determining its consummation. (2) In the crime of estafa, the element of damage is essential before the crime could be consummated. If there is no damage, even if the offender succeeded in carting away the personal property involved, estafa cannot be considered as consummated. (3) On the other hand, if it were a crime of theft, damage or intent to cause damage is not an element of theft. (4) What is necessary only is intent to gain, not even gain is important. (5) In the crime of abduction, the crucial element is the taking away of the woman with lewd designs. c. The Nature of the Crime Itself In defining of the frustrated stage of crimes involving the taking of human life (parricide, homicide, and murder), it is indispensable that the victim be mortally wounded. Hence, the general rule is that there must be a fatal injury inflicted, because it is only then that death will follow. F. Conspiracy and Proposal Conspiracy – exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. (Article 8, RPC). Requisites of conspiracy: (1) Two or more persons come to an agreement.  Agreement presupposes meeting of the minds of two or more persons (2) The agreement pertains to a commission of a felony.  Agreement to effect what has been conceived and determined. (3) The execution of the felony was decided upon. Note: There must be participation in the criminal resolution because simple knowledge thereof by a person may only make him liable as an accomplice. GENERAL RULE: Conspiracy and proposal to commit a felony are not punishable. EXCEPTION: They are punishable only in the cases in which the law specially provides a penalty therefore. Conspiracy to commit - (1) Treason (Art. 115) (2) Rebellion (Art. 136) (3) Insurrection (Art. 136) (4) Coup d’état, (Art. 136) (5) Sedition (Art. 141) (6) Monopolies and combinations in restraint of trade, espionage (Art. 186) (7) Illegal association (Art. 147) (8) Highway Robbery (P.D. 532) (9) Espionage (Sec. 3, C.A. 616) (10) Selected acts under the Dangerous Drugs Acts (11) Arson (12) Terrorism (R.A. 9372) Proposal to commit – (1)Treason (Art. 115) (2)Coup d’ etat (Art. 136) (3)Rebellion (Art. 136) (4)Inducement not to answer summons, appear or be sworn in Congress, etc. (Art. 150) Rationale: Conspiracy and proposal to commit a crime are only preparatory acts and the law regards them as innocent or at least permissible except in rare and exceptional cases. Conspiracy as a felony, distinguished from conspiracy as a manner of incurring criminal liability:  As a felony, conspirators do not need to actually commit treason, rebellion, insurrection, etc., it being sufficient that two or more persons agree and decide to commit it.  As a manner of incurring criminal liability, if they commit treason, rebellion, etc., they will be held liable for it, and the conspiracy which they had before committing the crime is only a manner of incurring criminal liability, not a separate offense. In conspiracy, the act of one is the act of all. GENERAL RULE: When the conspiracy is established, all who participated therein, irrespective of the quantity or quality of his participation is liable equally, whether conspiracy is pre-planned or instantaneous. EXCEPTION: Unless one or some of the conspirators committed some other crime which is not part of the conspiracy. EXCEPTION TO THE EXCEPTION: When the act constitutes a ―single indivisible offense.‖ Proposal to commit a felony - when the person who has decided to commit a felony proposes its execution to some other person or persons. (Art. 8, RPC) Examples: Proposal to commit treason (Art. 115) and proposal to commit coup d‘état, rebellion or insurrection (Art. 136). Requisites: (1) That a person has decided to commit a felony; and (2) That he proposes its execution to some other person or persons.
  • 37. CRIMINAL LAW REVIEWER 37 There is no criminal proposal when: (1) The person who proposes is not determined to commit the felony; (2) There is no decided, concrete and formal proposal; (3) It is not the execution of a felony that is proposed. Note: It is not necessary that the person to whom the proposal is made agrees to commit treason or rebellion. People v. Laurio (1991): It must be established by positive and conclusive evidence, not by conjectures or speculations. People v. Bello (2004): Conspiracy is predominantly a state of mind as it involves the meeting of the minds and intent of the malefactors. Consequently, direct proof is not essential to establish it. People v. Comadre (2004):  To establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required.  Conspiracy is never presumed; it must be shown to exist as clearly and convincingly as the commission of the crime itself.  Mere presence of a person at the scene of the crime does not make him a conspirator for conspiracy transcends companionship. People v. Cenahonon (2007): While it is mandatory to prove conspiracy by competent evidence, direct proof is not essential to show it – it may be deduced from the mode, method, and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action and community of interest. The accused herein were shown to have clearly acted towards a common goal. People v. Talaogan (2008): Direct proof is not required, as conspiracy may be proved by circumstantial evidence. It may be established through the collective acts of the accused before, during and after the commission of a felony that all the accused aimed at the same object, one performing one part and the other performing another for the attainment of the same objective; and that their acts, though apparently independent, were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. People v. Pangilinan (2003): Doctrine of Implied Conspiracy (ASKED 1 TIME IN BAR EXAMS) – Conspiracy need not be direct but may be inferred from the conduct of the parties, their joint purpose, community of interest and in the mode and manner of commission of the offense. Legal effects of implied conspiracy are:  Not all those present at the crime scene will be considered conspirators;  Only those who participated in the criminal acts during the commission of the crime will be considered co-conspirators;  Mere acquiescence to or approval of the commission of the crime, without any act of criminal participation, shall not render one criminally liable as co-conspirator.  In the absence of any previous plan or agreement to commit a crime, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and that each of the participants is liable only for his own acts. (People v. Bagano) A conspiracy is possible even when participants are not known to each other. When several persons who do not know each other simultaneously attack the victim, the act of one is the act of all, regardless of the degree of injury inflicted by any one of them. Everyone will be liable for the consequences. One who desisted is not criminally liable. As pointed out earlier, desistance is true only in the attempted stage. Before this stage, there is only a preparatory stage. Conspiracy is only in the preparatory stage. Illustration: A thought of having her husband killed because the latter was maltreating her. She hired some persons to kill him. The goons got hold of her husband and started mauling him. The wife took pity and shouted for them to stop but the goons continued. The wife ran away. The wife was prosecuted for parricide. But the Supreme Court said that there was desistance, so she is not criminally liable. Do not search for an agreement among participants. If they acted simultaneously to bring about their common intention, conspiracy exists. And when conspiracy exists, do not consider the degree of participation of each conspiracy because the act of one is the act of all. As a general rule, they have equal responsibility. Illustration: A, B and C have been courting the same lady for several years. On several occasions, they even visited the lady on intervening hours. Because of this, A, B and C became hostile with one another. One day, D invited the young lady to go out with him and she accepted the invitation. Eventually, the young lady agreed to marry D. When A, B and C learned about this, they all stood up to leave the house of the young lady feeling disappointed. When A looked back at the young lady with D, he saw D laughing menacingly. At that
  • 38. CRIMINAL LAW REVIEWER 38 instance, A stabbed D. C and B followed. In this case, it was held that conspiracy was present. In some exceptional situations, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the homicide or murder was, relatively speaking, of a minor character. (People v. Nierra) Illustration: There was a planned robbery, and the taxi driver was present during the planning. The taxi driver agreed for the use of his cab but said, ―I will bring you there, and after committing the robbery I will return later.‖ The taxi driver brought the conspirators where the robbery would be committed. After the robbery was finished, he took the conspirators back to his taxi and brought them away. It was held that the taxi driver was liable only as an accomplice. His cooperation was not really indispensable. The robbers could have engaged another taxi. The taxi driver did not really stay during the commission of the robbery. At most, what he only extended was his cooperation. Siton v. CA, (1991): The idea of a conspiracy is incompatible with the idea of a free-for-all. It is not enough that the attack be joint and simultaneous; it is necessary that the assailants be animated by one and the same purpose. A conspiracy must be shown to exist as clearly and convincingly as the crime itself. There is no definite opponent or definite intent as when a basketball crowd beats a referee to death. Distinctions between the liability of a conspirator and that of a member of a band where the crime committed is robbery which is attended by other crimes. (1) A conspirator is liable only for such other crimes which could be foreseen and which are the natural and logical consequences of the conspiracy. Thus, if the conspiracy is only to rob the victim, rape is not a foreseeable consequence. (People v. Castillo) (2) A member of a band in a robbery cuadrilla, on the other hand, is liable for all assaults, inclusive of rape and homicide, where he was present when these crimes were being committed but he did not attempt to prevent the same. (Art. 296 (2), RPC). (3) If both conspiracy to rob and cuadrilla are present, both rules may apply, in this manner: (a) If a homicide was committed, the lookout is liable therefore under the conspiracy theory; (b) if a rape was committed and the lookout was present but did not try to prevent it, he will be liable under the cuadrilla rule; and (c) if the lookout was not present when the homicide was committed, he will not be liable for the rape but he will still be liable for the homicide under the conspiracy theory.
  • 39. CRIMINAL LAW REVIEWER 39 2 Concepts of Conspiracy Stage How incurred Legal requirements Illustration AS A FELONY IN ITSELF Preparatory acts Mere agreement  The RPC must specifically punish the act of conspiring (and proposing)  The act MUST NOT BE ACCOMPLISHED, else the conspiracy is obliterated and the ACT ITSELF IS PUNISHED.  QUANTUM OF PROOF: Conspiracy as a crime must be established beyond reasonable doubt A, B, C and D came to an agreement to commit rebellion. Their agreement was to ring about the rebellion on a certain date. Even if none of them has performed the act of rebellion, there is already criminal liability arising from the conspiracy to commit the rebellion. But if anyone of them has committed the overt act of rebellion, the crime of all is no longer conspiracy but rebellion itself. This subsists even though the other co-conspirators do not know that one of them had already done the act of rebellion. AS A BASIS FOR LIABILITY Executory acts Commis- sion of overt act  Participants acted in concert or simultaneously or IN ANY WAY which is indicative of a meeting of the minds towards a common criminal goal or criminal objective.  The act of meeting together is not necessary as long as a common objective can be discerned from the overt acts.  THE ACT MUST BE ACCOMPLISHED, if there is only conspiracy or proposal, THERE IS NO CRIME TO BE PUNISHED.  QUANTUM OF PROOF: Reasonably inferred from the acts of the offenders when such acts disclose or show a common pursuit of the criminal objective. (People v. Pinto) Three persons plan to rob a bank. For as long as the conspirators merely entered the bank there is no crime yet. But when one of them draws a gun and disarms the security guard, all of them shall be held liable, unless a co- conspirator was absent from the scene of the crime or he showed up, but he tried to prevent the commission of the crime. G. Multiple Offenders Recidivism/Reincindencia; Art. 14 (9) Habituality/Reiteracion/ Repetition; Art. 14 (10) Quasi-Recidivism; Art. 160 Habitual Delinquency; Art. 62 (5) Crimes committed Sufficient that the offender have been previously convicted by final judgment for another crime embraced in the same title of the Code on the date of his trial Necessary that the offender shall have served out his sentence for the first offense Before serving or while serving sentence, the offender commits a felony (NOT a crime) Specified: 1. less serious or serious physical injuries 2. robbery 3. theft 4. estafa 5. falsification Period of time the crimes are committed No period of time Before serving or while serving sentence Within 10 years from his last release or conviction Number of crimes committed The second conviction for an offense embraced in the same title of RPC The previous and subsequent offenses must NOT be embraced in the Offender commits a felony Guilty the third time or oftener
  • 40. CRIMINAL LAW REVIEWER 40 same title of the RPC Their effects If not offset by any mitigating circumstance, increase the penalty only to the maximum Not always an aggravating circumstance Imposes the maximum of the penalty for the new offense, and cannot be offset by any mitigating circumstance An additional penalty shall be imposed 1. Recidivism Basis: the greater perversity of the offender, as shown by his inclination to commit crimes A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. (People v. Lagarto, 1991) Requisites (1) Offender is on trial for an offense (2) He was previously convicted by final judgment of another crime (3) Both the first and second offenses are embraced in the same title of the RPC (4) Offender is convicted of the new offense Note: What is controlling is the time of trial, not the time of commission of the crime. (Reyes, Revised Penal Code) 2. Habituality (Reiteracion) Basis: same as recidivism Requisites (1) Accused is on trial for an offense (2) He previously served sentence a. for another offense to which the law attaches an equal or greater penalty, OR b. for two or more crimes to which it attaches lighter penalty than that for the new offense (3) He is convicted of the new offense 3. Quasi-Recidivism Art. 160. Commission of another crime during service of penalty imposed for another offense; Penalty. — Besides the provisions of Rule 5 of Article 62, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony. 4. Habitual Delinquency Art. 62, last par. For the purpose of this article, a person shall be deemed to be habitual delinquent, if within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto estafa or falsification, he is found guilty of any of said crimes a third time or oftener. Requisites (1) Offender had been convicted of any of the crimes of serious or less serious physical injuries, robbery, theft, estafa, or falsification (2) After that conviction or after serving his sentence, he again committed, and, within 10 years from his release or first conviction, he was again convicted of any of the said crimes for the second time (3) After his conviction of, or after serving sentence for, the second offense, he again committed, and, within 10 years from his last release or last conviction, he was again convicted of any of said offenses, the third time or oftener Purpose of the law in imposing additional penalty To render more effective social defense and the reformation of habitual delinquents (REYES, quoting People v. Abuyen) See also: Aggravating circumstances H. Complex Crimes and Special Complex Crimes Plurality of Crimes (Concursu de delitos) (1) Consists of the successive execution (2) by the same individual (3) of different criminal acts (4) for any of which no conviction has yet been declared. Philosophy behind plural crimes Through the concept of plural crimes, several crimes are treated as one. The purpose of this is to allow leniency towards the offender, who, instead of being made to suffer distinct penalties for every resulting crime is made to suffer one penalty only, although it is the penalty for the most serious one and is imposed in its maximum period. Note: If by complexing the crime, the penalty would turn out to be higher, do not complex anymore. PLURALITY OF CRIMES RECIDIVISM There is no conviction for any of the crimes committed. There must be conviction by final judgment of the first or prior offense. A Complex crime is not just a matter of penalty, but of substance under the Revised Penal Code. Kinds of Plurality of Crimes a. Real or Material Plurality
  • 41. CRIMINAL LAW REVIEWER 41 (1) There are different crimes in law as well as in the conscience of the offender. (2) In such cases, the offender shall be punished for each and every offense that he committed. Illustration: A stabbed B. Then, A also stabbed C. There are two crimes committed. b. Formal or Ideal Plurality (1) There is but one criminal liability in this kind of plurality. (2) Divided into 3 groups: (a) Complex Crimes - When the offender commits either of the complex crimes defined in Art. 48 of the Code. (b) Special Complex Crimes - When the law specifically fixes a single penalty for 2 or more offenses committed. (c) Continuing and Continued Crimes - A single crime consisting of a series of acts but all arising from one criminal resolution. 1. Complex Crimes (ASKED 5 TIMES IN BAR EXAMS) Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. Art. 48 requires the commission of at least 2 crimes. But the two or more GRAVE or LESS GRAVE felonies must be (1) the result of a single act, or (2) an offense must be a necessary means for committing the other. Nature of complex crimes Although two or more crimes are actually committed, they constitute only one crime, in the eyes of the law; and in the conscience of the offender. Even in the case where an offense is a necessary means for committing the other, the evil intent of the offender is only one. Hence, there is only one penalty imposed for the commission of a complex crime. Two kinds of complex crimes (ASKED 4 TIMES IN BAR EXAMS) a. Compound Crime (Delito Compuesto) A single act results in two or more grave or less grave felonies. Requisites: (1) That only a single act is performed by the offender Single Act Several Acts Throwing a hand grenade Submachine gun – because of the number of bullets released A single bullet killing two person Firing of the revolver twice in succession (2) That the single acts produces: i. 2 or more grave felonies, or ii. 1 or more grave and 1 or more less grave felonies, or iii. 2 or more less grave felonies Light felonies produced by the same act should be treated and punished as separate offenses or may be absorbed by the grave felony. Illustration: When the crime is committed by force or violence, slight physical injuries are absorbed. So that when an offender performed more than one act, although similar, if they result in separate crimes, i. there is no complex crime at all, ii. instead, the offender shall be prosecuted for as many crimes as are committed under separate information. Compound crimes under Art. 48 is also applicable to crimes through negligence. Thus, a municipal mayor who accidentally discharged his revolver, killing a girl and injuring a boy was found guilty of complex crime of homicide with less serious physical injuries through reckless imprudence. (People v. Castro) Example of a compound crime: The victim was killed while discharging his duty as barangay captain to protect life and property and enforce law and order in his barrio. The crime is a complex crime of homicide with assault upon a person in authority. When in obedience to an order several accused simultaneously shot many persons, without evidence how many each killed, there is only a single offense, there being a single criminal impulse. b. Complex Crime Proper (Delito Complejo) An offense is a necessary means for committing the other. In complex crime, when the offender executes various acts, he must have a single purpose. But: When there are several acts performed, the assumption is that each act is impelled by a distinct Monteverde vs. People (2002): No complex crime when: 1. Two or more crimes are committed, but not by a single act; 2. Committing one crime is not a necessary means for committing the other (or others)
  • 42. CRIMINAL LAW REVIEWER 42 criminal impulse, hence each will have a separate penalty. Requisites: (1) That at least two offenses are committed (2) That one or some of the offenses must be necessary to commit the other (3) That both or all the offenses must be punished under the same statute. Note: The phrase ―necessary means‖ does not mean ―indispensable means‖ People vs. Comadre (2004): The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a ―single criminal impulse‖ which shows his lesser degree of perversity. No complex crime proper: (a) Subsequent acts of intercourse, after forcible abduction with rape, are separate acts of rape. (b) Not complex crime when trespass to dwelling is a direct means to commit a grave offense. (c) No complex crime, when one offense is committed to conceal the other. (d) When the offender already had in his possession the funds which he misappropriated, the subsequent falsification of a public or official document involving said offense is a separate offense. (e) No complex crime where one of the offenses is penalized by a special law. (f) There is no complex crime of rebellion with murder, arson, robbery, or other common crimes (People v. Hernandez; Enrile v. Salazar). (g) In case of continuous crimes. (h) When the other crime is an indispensable element of the other offense. General rules in complexing crimes: (a) When two crimes produced by a single act are respectively within the exclusive jurisdiction of two courts of different jurisdiction, the court of higher jurisdiction shall try the complex crime. (b) The penalty for complex crime is the penalty for the most serious crime, the same to be applied in its maximum period. (c) When two felonies constituting a complex crime are punishable by imprisonment and fine, respectively, only the penalty of imprisonment should be imposed. (d) Art. 48 applies only to cases where the Code does not provide a definite specific penalty for a complex crime. (e) One information should be filed when a complex crime is committed. (f) When a complex crime is charged and one offense is not proven, the accused can be convicted of the other. (g) Art. 48 also applies in cases when out of a single act of negligence or imprudence, two or more grave or less grave felonies resulted, but only the first part is applicable, i.e. compound crime. The second part of Art. 48 does not apply, referring to the complex crime proper because this applies or refers only to a deliberate commission of one offense to commit another offense. 2. Special Complex/Composite crimes The substance is made up of more than one crime but which in the eyes of the law is only (1) a single indivisible offense. (2) all those acts done in pursuance of the crime agreed upon are acts which constitute a single crime. Special Complex Crimes (1) Robbery with Homicide (Art. 294 (1)) (2) Robbery with Rape (Art. 294 (2)) (3) Robbery with Arson (4) Kidnapping with serious physical injuries (Art. 267 (3)) (5) Kidnapping with rape (6) Rape with Homicide (Art. 335) (7) Arson with homicide When crimes involved cannot be legally complexed, viz: (1) Malicious obtention or abusive service of search warrant (Art. 129) with perjury; (2) Bribery (Art. 210) with infidelity in the custody of prisoners; (3) Maltreatment of prisoners (Art. 235) with serious physical injuries; (4) Usurpation of real rights (Art. 312) with serious physical injuries; and (5) Abandonment of persons in danger (Art. 275) and crimes against minors (Art. 276 to 278) with any other felony. 3. Continued and Continuing Crimes (Delito Continuado) Continued crime (continuous or continuing) - A single crime, consisting of a series of acts but all arising from one criminal resolution. Cuello Calon explains the delito continuado in this way: When the actor , there being unity of purpose and of right violated, commits diverse acts, each one of which, although of a delictual character, merely constitutes a partial execution of a single particular delict, such delictual acts is called delito continuado. Example: One who on several occasions steals wheat deposited in a granary. Each abstraction constitutes theft, but instead of imposing on the culprit different penalties for each theft committed, he is punished for only one ―hurto continuado‖ for the total sum or value abstracted. Continuing offense - A continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.
  • 43. CRIMINAL LAW REVIEWER 43 Although there is a series of acts, there is only one crime committed. Hence, only one penalty shall be imposed. Real or material plurality Continued Crime There is a series of acts performed by the offender. Each act performed constitutes a separate crime because each act is generated by a criminal impulse The different acts constitute only one crime because all of the acts performed arise from one criminal resolution. People v. De Leon (1926): a thief who took from a yard of a house two game roosters belonging to two different persons was ruled to have committed only one crime of theft, because there is a unity of thought in the criminal purpose of the offender. The accused was animated by a single criminal impulse. A continued crime is not a complex crime.  The offender here does not perform a single act, but a series of acts, and one offense is not a necessary means for continuing the other.  Hence, the penalty is not to be imposed in its maximum period. A continued crime is different from a transitory crime (moving crime.) in criminal procedure for purposes of determining venue. When a transitory crime is committed, the criminal action may be instituted and tried in the court of the municipality, city or province wherein any of the essential ingredients thereof took place. (ASKED TWICE IN BAR EXAMS) While Article 48 speaks of a complex crime where a single act constitutes two or more grave or less grave offenses, those cases involving a series of acts resulting to two or more grave and less grave felonies, were considered by the Supreme Court as a complex crime when it is shown that the act is the product of one single criminal impulse. TIP: If confronted with a problem, the Supreme Court has extended this class of complex crime to those cases when the offender performed not a single act but a series of acts as long as it is the product of a single criminal impulse People v. Garcia (1980):  The accused were convicts who were members of a certain gang and they conspired to kill the other gang.  Some of the accused killed their victims in one place within the same penitentiary, some killed the others in another place within the same penitentiary.  The Supreme Court ruled that all accused should be punished under one information because they acted in conspiracy.  The act of one is the act of all.  Because there were several victims killed and some were mortally wounded, the accused should be held for the complex crime of multiple homicide with multiple frustrated homicide.  There is a complex crime not only when there is a single act but a series of acts.  It is correct that when the offender acted in conspiracy, this crime is considered as one and prosecuted under one information. Although in this case, the offenders did not only kill one person but killed different persons, the Supreme Court considered this as complex. Whenever the Supreme Court concludes that the criminals should be punished only once, because they acted in conspiracy or under the same criminal impulse:  it is necessary to embody these crimes under one single information.  It is necessary to consider them as complex crimes even if the essence of the crime does not fit the definition of Art 48, because there is no other provision in the RPC. Applying the concept of the ―continued crime‖, the following cases have been treated as constituting one crime only: i. People v. Tumlos, (1939): The theft of 13 cows belonging to two different persons committed by the accused at the same place and period of time; ii. People v. Jaranilla, (1974): The theft of six roosters belonging to two different owners from the same coop and at the same period of time; iii. People v. Sabbun, (1964): The illegal charging of fees for service rendered by a lawyer every time he collected veteran‘s benefits on behalf of a client who agreed that attorney‘s fees shall be paid out of such benefits. The collections of legal fees were impelled by the same motive, that of collecting fees for services rendered, and all acts of collection were made under the same criminal impulse. The Supreme Court declined to apply the concept in the following cases: i. People v. Dichupa, (1961): Two estafa cases, one which was committed during the period from January 19 to December, 1955 and the other from January 1956 to July 1956. Said acts were committed on two different occasions; ii. People v. CIV: Several malversations committed in May, June and July 1936 and falsifications to conceal said offenses committed in August and October, 1936. The malversations and falsifications were not the result of one resolution to embezzle and falsity; In the THEFT cases: The trend is to follow the single larceny doctrine: i. taking of several things, ii. whether belonging to the same or different owners,
  • 44. CRIMINAL LAW REVIEWER 44 iii. at the same time and place, constitutes one larceny only. Abandoned is the doctrine that the government has the discretion to prosecute the accused for one offense or for as many distinct offenses as there are victims. Note: The concept of delito continuado has been applied to crimes under special laws since in Art. 10, the RPC shall be supplementary to special laws, unless the latter provides the contrary. CHAPTER III. CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY A. JUSTIFYING CIRCUMSTANCES B. EXEMPTING CIRCUMSTANCES C. MITIGATING CIRCUMSTANCES D. AGGRAVATING CIRCUMSTANCES E. ALTERNATIVE CIRCUMSTANCES F. ABSOLUTORY CAUSE JUSTIFYING EXEMPTING MITIGATING AGGRAVATING ALTERNATIVE NO WRONG THERE IS A WRONG THERE IS A FELONY THERE IS A FELONY THERE IS A FELONY No criminal liability No criminal liability Decreased criminal liability Increased criminal liability Increased or decreased liability No civil liability Except:  state of necessity With civil liability Except: accident; insuperable cause With civil liability With civil liability With civil liability Imputability – is the quality by which an act may be ascribed to a person as it author or owner. It implies that the act committed has been freely and consciously done and may, therefore, be put down to th doer as his very own Responsibility – is the obligation of suffering the consequences of crime. It is the obligation of taking the penal and civil consequences of the crime. Imputability distinguished from responsibility – while imputability implies that a deed may be imputed to a person, responsibility implies that the person must take the consequences of such a deed. Guilt – is an element of responsibility, for a man cannot be made to answer for the consequences of a crime unless he is guilty. (Reyes, Revised Penal Code) A. Justifying Circumstances (ASKED 30 TIMES IN BAR EXAMS) FIVE TYPES of justifying circumstances: 1. Self defense 2. Defense of relatives 3. Defense of strangers 4. Avoidance of a greater evil 5. Fulfillment of duty 6. Obedience to an order issued for some lawful purpose Justifying Circumstances – those where the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability. There is no civil liability except in par. 4, Art. 11, where the civil liability is borne by the persons benefited by the act. An affirmative defense, hence, the burden of evidence rests on the accused who must prove the circumstance by clear and convincing evidence. There is NO crime committed, the act being justified. Thus, such persons cannot be considered criminals. Basis: Lack of criminal intent 1. Self Defense Includes not only the defense of the person or body of the one assaulted but also that of his rights, the enjoyment of which is protected by law. It includes: a. The right to honor. Hence, a slap on the face is considered as unlawful aggression since the face represents a person and his dignity. (Rugas vs, People) b. The defense of property rights can be invoked if there is an attack upon the property although it is not coupled with an attack upon the person of the owner of the premises. All the elements for justification must however be present. (People v. Narvaez) Elements: a. Unlawful aggression (1) Equivalent to an actual physical assault; OR threatened assault of an immediate and imminent kind which is offensive and positively strong, showing the wrongful intent to cause harm. (2) The aggression must constitute a violation of the law. When the aggression ceased to exist, there is no longer a necessity to defend one‘s self. EXCEPT: when the
  • 45. CRIMINAL LAW REVIEWER 45 aggressor retreats to obtain a more advantageous position to ensure the success of the initial attack, unlawful aggression is deemed to continue. (3) Must come from the person attacked by the accused. (4) Unlawful aggression must also be a continuing circumstance or must have been existing at the time the defense is made. Once the unlawful aggression is found to have ceased, the one making the defense of a stranger would likewise cease to have any justification for killing, or even just wounding, the former aggressor. [People vs. Dijan (2002)] Note: No unlawful aggression when there was an agreement to fight and the challenge to fight was accepted. BUT aggression which is ahead of an agreed time or place is unlawful aggression. b. Reasonable necessity of means employed to prevent or repel it. Test of reasonableness The means employed depends upon: (1) nature and quality of the weapon used by the aggressor (2) aggressor‘s physical condition, character, size, and other circumstances (3) and those of the person defending himself (4) the place and occasion of the assault. c. Lack of sufficient provocation on part of defender (1) In case there was a provocation on the part of the person attacked, the attack should not immediately precede the provocation for defense to be valid. (2) Never confuse unlawful aggression with provocation. (3) Mere provocation is not enough. It must be real and imminent. Unlawful aggression is an indispensable requisite. (4) If there is unlawful aggression but one of the other requisites is lacking, it is considered an incomplete self-defense which mitigates liability. (5) Self-defense includes the defense of one‘s rights, that is, those rights the enjoyment of which is protected by law. (6) Retaliation is different from an act of self- defense. Marzonia v. People (2006): Held: As the Court previously held, mortally wounding an assailant with a penknife is not a reasonably necessary means to repel fist blows. a. Defense of Honor: People v. Dela Cruz (1935): Accused was found guilty of homicide for stabbing and killing Rivera. Prosecution claimed that Dela Cruz and Rivera had a relationship and that the accused was madly in love with the deceased and was extremely jealous of another woman with whom Rivera also had a relationship. Dela Cruz claimed, on the other hand, that on her way home one evening, Rivera followed her, embraced and kissed her and touched her private parts. She didn‘t know that it was Rivera and that she was unable to resist the strength of Rivera so she got a knife from her pocket and stabbed him in defense of her honor. Held: She is justified in using the pocketknife in repelling what she believed to be an attack upon her honor. It was a dark night and she could not have identified Rivera. There being no other means of self-defense. People v. Juarigue (1946): Amado (deceased) has been courting the accused Avelina in vain. On the day of the crime, Avelina and Amado were in Church. Amado sat beside Avelina and placed his hand on her thigh. Thereafter, Avelina took out her knife and stabbed Amado in the neck, causing the death of Amado. Held: Although the defense of one‘s honor exempts one from criminal liability, it must be proved that there is actual danger of being raped. In this case, 1) the church was well-lit, 2) there were several people in the church, including the father of the accused and other town officials. In light of these circumstances, accused could not have possibly been raped. The means employed in defense of her honor was evidently excessive. b. Defense of Property: People vs. Apolinar: This can only be invoked as justifying circumstance if (1) Life and limb of the person making the defense is also the subject of unlawful aggression (2) Life cannot be equal to property. People v. Narvaez (1983): Narvaez was taking his rest inside his house when he heard that the wall of his house was being chiseled. He saw that Fleischer and Rubia, were fencing the land of the father of the deceased Fleischer. He asked the group to stop but they refused. The accused got mad so he got his shotgun and shot Fleischer. Rubia ran towards the jeep and knowing there is a gun on the jeep, the accused fired at Rubia as well. Narvaez claimed he acted in defense of his person and rights. Held: There was aggression by the deceased not on the person of the accused but on his property rights when Fleischer angrily ordered the continuance of the fencing. The third element of self-defense is also present because there was no sufficient provocation on the part of Narvaez since he was sleeping when the deceased where fencing. However, the second element was lacking. Shooting the victims from the window of his house is disproportionate to the physical aggression by the
  • 46. CRIMINAL LAW REVIEWER 46 victims. Thus, there is incomplete self-defense. 2. Defense of Relatives Elements: (1) Unlawful aggression Unlawful aggression may not exist as a matter of fact, it can be made to depend upon the honest belief of the one making the defense. Reason: The law acknowledges the possibility that a relative, by virtue of blood, will instinctively come to the aid of their relatives. (2) Reasonable necessity of means employed to prevent or repel it (3) In case person attacked provoked attacker defender must have no part therein Reason: Although the provocation prejudices the person who gave it, its effects do not reach the defender who took no part therein, because the latter was prompted by some noble or generous sentiment in protecting and saving a relative Relatives entitled to defense: i. Spouse ii. Ascendants iii. Descendants iv. legitimate, natural or adopted Brothers/Sisters v. Relatives by affinity in the same degree vi. Relatives by consanguinity w/in the 4th civil degree Illustration: The sons of A honestly believe that their father was the victim of an unlawful aggression when in fact it was their father who attacked B. If they killed B under such circumstances, they are justified. Balunueco v. CA (2003): Held: Of the three (3) requisites of defense of relatives, unlawful aggression is a condition sine qua non, for without it any defense is not possible or justified. In order to consider that an unlawful aggression was actually committed, it is necessary that an attack or material aggression, an offensive act positively determining the intent of the aggressor to cause an injury shall have been made;a mere threatening or intimidating attitude is not sufficient to justify the commission of an act which is punishable per se, and allow a claim of exemption from liability on the ground that it was committed in self-defense or defense of a relative. 3. Defense of Strangers Elements: (1) Unlawful aggression; (2) Reasonable necessity of the means employed to prevent or repel it; (3) The person defending be not induced by revenge, resentment or other evil motive. Note: If the person being defended is a second cousin, it will be defense of stranger. Basis: What one may do in his defense, another may do for him. The ordinary man would not stand idly by and see his companion killed without attempting to save his life 4. Avoidance of a Greater Evil Requisites: (1) Evil sought to be avoided actually exists (2) Injury feared be greater than that done to avoid it (3) There is no other practical & less harmful means of preventing it The evil or injury sought to be avoided must not have been produced by the one invoking the justifying circumstances. GENERAL RULE: No civil liability in justifying circumstances because there is no crime. EXCEPTION: There is CIVIL LIABILITY under this paragraph. Persons benefited shall be liable in proportion to the benefit which they have received. Illustration: A drove his car beyond the speed limit so much so that when he reached the curve, his vehicle skidded towards a ravine. He swerved his car towards a house, destroying it and killing the occupant therein. A cannot be justified because the state of necessity was brought about by his own felonious act. Ty v. People (2004): Ty's mother and sister were confined at the Manila Doctors' Hospital. Ty signed the "Acknowledgment of Responsibility for Payment" in the Contract of Admission. The total hospital bills of the two patients amounted to P1,075,592.95. Ty executed a promissory note wherein she assumed payment of the obligation in installments. To assure payment of the obligation, she drew 7 postdated checks against Metrobank payable to the hospital which were all dishonored by the drawee bank due to insufficiency of funds. As defense, Ty claimed that she issued the checks because of ―an uncontrollable fear of a greater injury.‖ She averred that she was forced to issue the checks to obtain release for her mother who was being inhumanely treated by the hospital. She alleged that her mother has contemplated suicide if she would not be discharged from the hospital. Ty was found guilty by the lower courts of 7 counts of violation of BP22. Held: The court sustained the findings of the lower courts. The evil sought to be avoided is merely expected or anticipated. So the defense of an uncontrollable fear of a greater injury‖ is not applicable. Ty could have taken advantage of an available option to avoid committing a crime. By her own admission, she had the choice to give jewelry or
  • 47. CRIMINAL LAW REVIEWER 47 other forms of security instead of postdated checks to secure her obligation. Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor. In this case, the issuance of the bounced checks was brought about by Ty's own failure to pay her mother's hospital bills. 5. Fulfillment of Duty or Lawful Exercise of Right or office Requisites: (1) Offender acted in performance of duty or lawful exercise of a rig ht/office (2) The resulting felony is the unavoidable consequence of the due fulfillment of the duty or the lawful exercise of the right or office. Note: If the first condition is present, but the second is not because the offender acted with culpa, the offender will be entitled to a privileged mitigating circumstance. The penalty would be reduced by one or two degrees. People v. Ulep (2000): Accused-appellant and the other police officers involved originally set out to restore peace and order at Mundog Subdivision where the victim was then running amuck. The victim threatened the safety of the police officers despite accused-appellant's previous warning shot and verbal admonition to the victim to lay down his weapon. Held: As a police officer, it is to be expected that accused-appellant would stand his ground. Up to that point, his decision to respond with a barrage of gunfire to halt the victim's further advance was justified under the circumstances. A police officer is not required to afford the victim the opportunity to fight back. Neither is he expected – when hard pressed and in the heat of such an encounter at close quarters – to pause for a long moment and reflect coolly at his peril, or to wait after each blow to determine the effects thereof. But he cannot be exonerated from overdoing his duty when he fatally shot the victim in the head, even after the latter slumped to the ground due to multiple gunshot wounds sustained while charging at the police officers. Sound discretion and restraint dictated that a veteran policeman should have ceased firing at the victim the moment he saw the latter fall to the ground. The victim at that point no longer posed a threat. Shooting him in the head was obviously unnecessary. The law does not clothe police officers with authority to arbitrarily judge the necessity to kill- it must be stressed that their judgment and discretion as police officers in the performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. Mamagun vs. People (2007): A policeman in pursuit of a snatcher accidentally shot one of the bystanders who was actually helping him chase the snatcher. Held: To be sure, acts in the fulfillment of a duty, without more, do not completely justify the petitioner’s firing the fetal gunshot at the victim. True, petitioner, as one of the policemen responding to a reported robbery then in progress, was performing his duty as a police officer as well as when he was trying to effect the arrest of the suspected robber and in the process, fatally shoot said suspect, albeit the wrong man. However, in the absence of the equally necessary justifying circumstance that the injury of offense committed be the necessary consequence if the due performance of such duty, there can only be incomplete justification, a privilege mitigating circumstance under Art. 13 and 69 of the RPC. There can be no quibbling that there was no rational necessity for the killing of Contreras. Petitioner could have first fired a warning shot before pulling the trigger against Contreras who was one of the residents chasing the suspected robber. People v. Delima (1922): Napilon escaped from the jail where he was serving sentence. Some days afterwards the policeman, Delima, who was looking for him found him in the house of Alegria, armed with a pointed piece of bamboo in the shape of a lance. Delima demanded the surrender of the weapon but Napilon refused. Delima fired his revolver to impose his authority but the bullet did not hit him. The criminal ran away and Delima went after him and fired again his revolver this time hitting and killing him. Held: The killing was done in the performance of a duty. The deceased was under the obligation to surrender and had no right, after evading service of his sentence, to commit assault and disobedience with a weapon in his hand, which compelled the policeman to resort to such extreme means, which, although it proved to be fatal, was justified by the circumstance. 6. Obedience to an order issued for some lawful purpose Requisites: (1) Order must have been issued by a superior (2) The order is for some lawful purpose (3) The means used to carry it out must be lawful Note: A subordinate is not liable for carrying out an illegal order of his superior if he is not aware of the illegality of the order and he is not negligent. People v. Oanis (1943): Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his
  • 48. CRIMINAL LAW REVIEWER 48 escape, recapture him if he escapes, and protect himself from bodily harm, yet he is never justified in using unnecessary force or in treating him with wanton violence or in resorting to dangerous means when the arrest could be effected otherwise. People v. Beronilla (1955): Held: Where the accused acted upon orders of superior officers that the, as military subordinates, could not question, and obeyed in good faith, without being aware of their illegality, without any fault or negligence on their part, the act is not accompanied by criminal intent. A crime is not committed if the mind of the person performing the act be innocent. Justifying vs. Exempting Circumstance JUSTIFYING CIRCUMSTANCE EXEMPTING CIRCUMSTANCE It affects the act, not the actor. It affects the actor, not the act. The act is considered to have been done within the bounds of law; hence, legitimate and lawful in the eyes of the law. The act complained of is actually wrongful, but the actor is not liable. Since the act is considered lawful, there is no liability. Since the act complained of is actually wrong, there is a crime but since the actor acted without voluntariness, there is no dolo or culpa. There is no criminal or civil liability. There is a crime, although there is no criminal, so there is civil liability (Except: Art. 12, par. 4 and 7 where there is no civil liability. Anti-Violence against Women and Their Children Act of 2004 (R.A. 9262)  Battered Woman Syndrome- refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.  Battered Woman Syndrome as a Defense. – Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists [SECTION 26, RA 9262] In People Vs. Genosa, the Court ruled that the battered woman syndrome is characterized by a ―CYCLE OF VIOLENCE‖, which is made up of three phases. i. First Phase: Tension Building Phase (1) Where minor battering occurs, it could be a verbal or slight physical abuse or another form of hostile behavior. (2) The woman tries to pacify the batterer through a show of kind, nurturing behavior, or by simply staying out of the way. (3) But this proves to be unsuccessful as it only gives the batterer the notion that he has the right to abuse her. ii. Second Phase: Acute Battering Incident (1) Characterized by brutality, destructiveness, and sometimes death. (2) The battered woman has no control; only the batterer can stop the violence. (3) The battered woman realizes that she cannot reason with him and resistance would only worsen her condition. iii. Third Phase: Tranquil Period (1) Characterized by guilt on the part of the batterer and forgiveness on the part of the woman. (2) The batterer may show a tender and nurturing behavior towards his partner and the woman also tries to convince herself that the battery will never happen again and that her partner will change for the better. Four Characteristics of the Syndrome: (1) The woman believes that the violence was her fault; (2) She has an inability to place the responsibility for the violence elsewhere; (3) She fears for her life and/or her children‘s life (4) She has an irrational belief that the abuser is omnipresent and omniscient. B. Exempting Circumstances (ASKED 14 TIMES IN BAR EXAMS) SIX TYPES of exempting circumstances: 1. Imbecility/Insanity 2. Minority 3. Accident 4. Compulsion of irresistible force 5. Impulse of uncontrollable fear 6. Insuperable or lawful cause IMPORTANT POINTS: The reason for the exemption lies in the involuntariness or lack of knowledge of the act: (1) one or some of the ingredients of criminal liability such as criminal intent, intelligence, or freedom of action on the part of the offender is missing (2) In case it is a culpable felony, there is absence of freedom of action or intelligence, or absence
  • 49. CRIMINAL LAW REVIEWER 49 of negligence, imprudence, lack of foresight or lack of skill. 1. Insanity and Imbecility Imbecile - One who, while advanced in age, has a mental development comparable to that of a child between 2 and 7 years of age. Exempt in all cases from criminal liability Insane - There is a complete deprivation of intelligence in committing the act but capable of having lucid intervals. During a lucid interval, the insane acts with intelligence and thus, is not exempt from criminal liability Insanity is a defense in the nature of confession and avoidance and must be proved beyond reasonable doubt Note: There is another school of thought that believes that insanity, as with other such defenses, need only be proved to a degree sufficient to raise a reasonable doubt of guilt. Evidence of insanity must refer to: a. the time preceding the act under prosecution or b. at the very moment of its execution. Insanity subsequent to commission of crime is not exempting Feeblemindedness is not imbecility. It is necessary that there is a complete deprivation of intelligence in committing the act, that is, the accused be deprived of reason, that there is no responsibility for his own acts; that he acts without the least discernment; that there be complete absence of the power to discern, or that there be a complete deprivation of the freedom of the will. (People vs. Formigones). Cases covered under this article: (1) Dementia praecox Note: Cited in OLD cases, but is a term no longer used by mental health practitioners (2) Kleptomania: if found by a competent psychiatrist as irresistible (3) Epilepsy (4) Somnambulism: sleep-walking (People vs. Taneo) (5) Malignant malaria: which affects the nervous system People vs. Dungo: The insanity that is exempting is limited only to mental aberration or disease of the mind and must completely impair the intelligence of the accused. Two tests of insanity: (1) The test of cognition, or whether the accused acted with complete deprivation of intelligence in committing the said crime; (2) The test of volition, or whether the accused acted in total deprivation of freedom of will. (People vs. Rafanan) Juridical Effects of Insanity (1)If present at the time of the commission of the crime – EXEMPT from liability. (2)If present during trial – proceedings will be SUSPENDED and accused is committed to a hospital. (3)After judgment or while serving sentence – Execution of judgment is SUSPENDED, the accused is committed to a hospital. The period of confinement in the hospital is counted for the purpose of the prescription of the penalty. 2. Minority Juvenile Justice and Welfare Act of 2006 (R.A. 9344); also refer to Child and Youth Welfare Code (P.D. 603, as amended) a. Definition of child in conflict with the law Section 4 (e). "Child in conflict with the law" – a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. b. Minimum age of criminal responsibility RA 9344, SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. What is the Juvenile Justice and Welfare System? "Juvenile Justice and Welfare System" refers to a system dealing with children at risk and children in conflict with the law, which provides child- appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re- integration and aftercare to ensure their normal growth and development. (See Title V: Juvenile Justice and Welfare System of RA 9344). c. Determination of age (Sec. 7, RA 9344) PRESUMPTION: Minority of child in conflict with the law. S/he shall enjoy all the rights of a child in
  • 50. CRIMINAL LAW REVIEWER 50 conflict with the law until s/he is proven to be 18 years old or older. The age of a child may be determined from:  The child‘s birth certificate,  Baptismal certificate, or  Any other pertinent documents. In the absence of these documents, age may be based on:  information from the child himself/herself,  testimonies of other persons,  the physical appearance of the child, and  other relevant evidence. In case of doubt as to the child‘s age, it shall be resolved in his/her favor. d. Exemption from criminal liability (1) 15 yrs old or below at the time of commission of offense: absolutely exempt from criminal liability but subject to intervention program (2) Over 15 yrs old but below 18: exempt from criminal liability & subject to intervention program  If acted w/ discernment subject to diversion program (3) Below 18 yrs are exempt from: (1) Status offense (2) Vagrancy and Prostitution (3) Mendicancy (PD1563) (4) Sniffing of Rugby (PD 1619) Discernment – mental capacity to understand the difference between right and wrong as determined by the child‘s appearance , attitude, comportment and behavior not only before and during the commission of the offense but also after and during the trial. It is manifested through: (1) Manner of committing a crime – Thus, when the minor committed the crime during nighttime to avoid detection or took the loot to another town to avoid discovery, he manifested discernment. (2) Conduct of the offender – The accused shot the victim with his sling shot and shouted ―Putang ina mo‖. Note: The exemption from criminal liability shall not include exemption from civil liability. Automatic Suspension of Sentence – Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various chcumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. (Sec. 38) Discharge of the Child in Conflict with the Law. - Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. (Sec. 39) 3. Accident (Damnum Absque Injuria) Requisites: (1) A person performing a lawful act; (2) With due care; (3) He causes an injury to another by mere accident; (4) Without fault or intention of causing it. Accident - something that happens outside the sway of our will and, although coming about through some act of our will, lies beyond the bounds of humanly foreseeable consequences. Under Article 12, paragraph 4, the offender is exempt not only from criminal but also from civil liability. Illustration:  A person who is driving his car within the speed limit, while considering the condition of the traffic and the pedestrians at that time, tripped on a stone with one of his car tires. The stone flew hitting a pedestrian on the head. The pedestrian suffered profuse bleeding. There is no civil liability under paragraph 4 of Article 12. Although this is just an exempting circumstance, where generally there is civil liability, yet, in paragraph 4 of Article 12, there is no civil liability as well as criminal liability. The driver is not under obligation to defray the medical expenses. 4. Irresistible Force Elements: (1) That the compulsion is by means of physical force. (2) That the physical force must be irresistible. (3) That the physical force must come from a third person Note: Before a force can be considered to be an irresistible one, it must produce such an effect on the individual that, in spite of all resistance, it
  • 51. CRIMINAL LAW REVIEWER 51 reduces him to a mere instrument and, as such, incapable of committing the crime. (Aquino, Revised Penal Code) People v. Lising (1998) Held: To be exempt from criminal liability, a person invoking irresistible force must show that the force exerted was such that it reduced him to a mere instrument who acted not only without will but against his will. 5. Uncontrollable Fear Requisites: (1) That the threat which causes the fear is of an evil greater than or at least equal to, that which he is forced to commit; (2) That it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity to the accused for escape or self- defense in equal combat. Illustration: A is forced at gun point to forge the signature of B. US v. Exaltacion (1905): Exaltacion and Tanchico were convicted w/ rebellion based on documents found in the house of Contreras, a so-called general of bandits, containing signatures of defendants swearing allegiance to the Katipunan. Defendants aver that these documents were signed under duress and fear of death. They allege further that they were abducted by thieves and that these men forced the defendants to sign the documents Held: The duress under which the defendants acted relieved them from criminal liability . Prosecution was unable to prove the guilt of the accused and testimonies of witnesses for the accused further corroborated their defense. Irresistible Force Uncontrollable Fear Irresistible force must operate directly upon the person of the accused and the injury feared may be a lesser degree than the damage caused by the accused. Uncontrollable fear may be generated by a threatened act directly to a third person such as the wife of the accused, but the evil feared must be greater or at least equal to the damage caused to avoid it. Offender uses physical force or violence to compel another person to commit a crime. Offender employs intimidation or threat in compelling another to commit a crime. 6. Insuperable or Lawful Causes Requisites: (1) That an act is required by law to be done; (2) That a person fails to perform such act; (3) That his failure to perform such act was due to some lawful or insuperable cause Insuperable means insurmountable. Illustration: Person was arrested for direct assault at 5:00 pm after government offices close. Art 125 RPC requires that a person arrested be delivered to judicial authorities within prescribed number of hours according to the gravity of offense. But complaint may only be filed the next day when offices open. The circumstance of time of arrest may be considered as an insuperable cause. People v. Bandian (1936): A woman cannot be held liable for infanticide when she left her newborn child in the bushes without being aware that she had given birth at all. Severe dizziness and extreme debility made it physically impossible for Bandian to take home the child plus the assertion that she didn’t know that she had given birth. See Part F for absolutory causes C. Mitigating Circumstances (ASKED 19 TIMES IN BAR EXAMS) TWELVE TYPES of mitigating circumstances: 1. Incomplete Justification and Exemption 2. Under 18 or Over 70 years of age 3. No intention to commit so grave a wrong 4. Sufficient Provocation or Threat 5. Immediate vindication of a grave offense 6. Passion or obfuscation 7. Voluntary surrender 8. Voluntary plea of guilt 9. Plea to a lower offense 10. Physical defect 11. Illness 12. Analogous Circumstances Mitigating circumstances or causas attenuates are those which, if present in the commission of the crime, do not entirely free the actor from criminal liability, but serve only to reduce the penalty. Basis: They are based on the diminution of either freedom of action, intelligence or intent or on the lesser perversity of the offender. However, voluntary surrender and plea of guilt which, being circumstances that occur after the commission of the offense, show the accused‘s respect for the law (voluntary surrender) and remorse and acceptance of punishment (plea of guilt), thereby necessitating a lesser penalty to effect his rehabilitation (based on the Positivist School)
  • 52. CRIMINAL LAW REVIEWER 52 The circumstances under Article 13 are generally ordinary mitigating. However, paragraph 1, is treated as a privileged mitigating circumstance if majority of the requisites concurred, otherwise, it will be treated as an ordinary mitigating circumstance. (Reyes, citing Art. 69). Correlate Article 13 with Articles 63 and 64. Article 13 is meaningless without knowing the rules of imposing penalties under Articles 63 and 64. TIP: In bar problems, when you are given indeterminate sentences, these articles are very important. Distinctions Ordinary MC Privileged MC Can be offset by any aggravating circumstance Cannot be offset by aggravating circumstance If not offset by aggravating circumstance, produces the effect of applying the penalty provided by law for the crime in its min period in case of divisible penalty The effect of imposing upon the offender the penalty lower by one or two degrees than that provided by law for the crime. 1. Incomplete Justification and Exemption The circumstances of justification or exemption which may give place to mitigation, because not all the requisites necessary to justify the act or to exempt from criminal liability in the respective cases are attendant, are the following: (1) Self-defense (Art. 11, par. 1) (2) Defense of relatives (Art. 11, par. 2) (3) Defense of strangers (Art. 11, par. 3) (4) State of necessity (Art. 11, par. 4) (5) Performance of duty (Art. 11, par. 5) (6) Obedience to the order of superiors (Art. 11, par. 6) (7) Minority over 15 years of age but below 18 years of age (Art. 12, par. 3) (8) Causing injury by mere accident (Art. 12, par.4) (9) Uncontrollable fear (Art. 12 par. 6) Incomplete justifying circumstances: a. Incomplete self-defense, defense of relatives, defense of stranger In these 3 classes of defense, UNLAWFUL AGGRESSION must always be present. It is an indispensable requisite. Par. 1 of Art. 13 is applicable only when  unlawful aggression is present  but one or both of the other 2 requisites are not present in any of the cases referred to in circumstances number 1, 2 and 3 or Art. 11. Example: When the one making defense against unlawful aggression used unreasonable means to prevent or repel it, he is entitled to a privileged mitigating circumstance. Note: When two of the three requisites mentioned therein are present, the case must be considered as a privileged mitigating circumstance referred to in Art. 69 of this Code. (Article 69 requires that a majority of the conditions required must be present.) b. Incomplete justifying circumstance of avoidance of greater evil or injury Requisites under par. 4 of Art. 11: (1) That the evil sought to be avoided actually exists; (2) That the injury feared be greater than that done to avoid it; (3) That there be no other practical and less harmful means of preventing it. Avoidance of greater evil or injury is a justifying circumstance if all the three requisites mentioned in par. 4 of Art. 11 are present. But if any of the last two requisites is lacking, there is only a mitigating circumstance. The first element is indispensable. c. Incomplete justifying circumstance of performance of duty Requisites under par.5, Art. 11 (1) That the accused acted in the performance of a duty or in the lawful exercise of a right or office; and (2) That the injury caused or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the case of People v. Oanis (1943), where only one of the requisites was present, Article 69 was applied. People v. Oanis (1943): The SC considered one of the 2 requisites as constituting the majority. It seems that there is no ordinary mitigating circumstance under Art. 13 par. 1 when the justifying or exempting circumstance has 2 requisites only. Incomplete exempting circumstances: (1) Incomplete exempting circumstance of accident Requisites under par. 4 of Art. 12: (1) A person is performing a lawful act (2) With due care (3) He causes an injury to another by mere accident (4) Without fault or intention of causing it There is NO SUCH MITIGATING CIRCUMSTANCE because:
  • 53. CRIMINAL LAW REVIEWER 53  If the 2nd requisite and 1st part of the 4th requisite are absent, the case will fall under Art. 365 which punishes reckless imprudence.  If the 1st requisite and 2nd part of the 4th requisite are absent, it will be an intentional felony (Art. 4, par. 1). (2) Incomplete exempting circumstance of uncontrollable fear. Requisites under par. 6 of Art. 12: (1) That the threat which caused the fear was of an evil greater than, or at least equal to, that which he was required to commit; (2) That it promised an evil of such gravity and imminence that an ordinary person would have succumbed to it. Note: If only one of these requisites is present, there is only a mitigating circumstance. 2. Under 18 Or Over 70 Years Of Age a. In lowering the penalty: Based on age of the offender at the time of the commission of the crime not the age when sentence is imposed b. In suspension of the sentence: Based on age of the offender (under 18) at the time the sentence is to be promulgated (See Art. 80, RPC) c. Par. 2 contemplates the ff: (1) An offender over 9 but under 15 of age who acted with discernment. (2) An offender fifteen or over but under 18 years of age. (3) An offender over 70 years old Legal effects of various ages of offenders: 1. 15 and below - Exempting 2. Above 15 but under 18 years of age, also an exempting circumstance, unless he acted with discernment (Art. 12, par. 3 as amended by RA 9344). 3. Minor delinquent under 18 years of age, the sentence may be suspended. (Art. 192, PD No. 603 as amended by PD 1179) 4. 18 years or over, full criminal responsibility. 5. 70 years or over – mitigating, no imposition of death penalty; if already imposed. Execution of death penalty is suspended and commuted. Determination of Age – The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The age of a child may be determined from the child's birth certificate, baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor. Any person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court may file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all interested parties. If a case has been fiied against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion to determine the age of the child in the same court where the case is pending. Pending hearing on the said motion, proceedings on the main case shall be suspended. In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law. (Sec. 7, RA 9344). Basis: Diminution of intelligence 3. No Intention to Commit So Grave A Wrong (Praeter Intentionem)  There must be a notable disproportion between the means employed by the offender and the resulting harm.  The intention, as an internal act, is judged o not only by the proportion of the means employed by him to the evil produced by his act, o but also by the fact that the blow was or was not aimed at a vital part of the body; o this includes: the weapon used, the injury inflicted and his attitude of the mind when the accused attacked the deceased.  The lack of intention to commit so grave a wrong can also be inferred from the subsequent acts of the accused immediately after committing the offense, such as when the accused helped his victim to secure medical treatment.  This circumstance does not apply when the crime results from criminal negligence or culpa.  Only applicable to offense resulting in death, physical injuries, or material harm (including property damage). It is not applicable to defamation or slander.  This mitigating circumstance is not applicable when the offender employed brute force.  Lack of intent to commit so grave a wrong is not appreciated where the offense committed is characterized by treachery.  When the victim does not die as a result of the assault in cases of crimes against persons, the absence of the intent to kill reduces the felony to mere physical injuries, but it does not
  • 54. CRIMINAL LAW REVIEWER 54 constitute a mitigating circumstance under Art. 13(3). People v. Calleto (2002): Held: The lack of "intent" to commit a wrong so grave is an internal state. It is weighed based on the weapon used, the part of the body injured, the injury inflicted and the manner it is inflicted. The fact that the accused used a 9-inch hunting knife in attacking the victim from behind, without giving him an opportunity to defend himself, clearly shows that he intended to do what he actually did, and he must be held responsible therefor, without the benefit of this mitigating circumstance. People v. Ural (1974): Held: The intention, as an internal act, is judged not only by the proportion of the means employed by him to the evil produced by his act, but also by the fact that the blow was or was not aimed at a vital part of the body. Thus, it may be deduced from the proven facts that the accused had no intent to kill the victim, his design being only to maltreat him, such that when he realized the fearful consequences of his felonious act, he allowed the victim to secure medical treatment at the municipal dispensary. 4. Sufficient Provocation or Threat Elements: (1) That the provocation must be sufficient (2) That it must originate from the offended party (3) That the provocation must be immediate to the act, i.e., to the commission of the crime by the person who is provoked Provocation - Any unjust or improper conduct or act of the offended part capable of exciting, inciting, or irritating anyone. Provocation in order to be mitigating must be SUFFICIENT and IMMEDIATELY preceding the act. (People v. Pagal)  ―Sufficient‖ means adequate to excite a person to commit a wrong and must accordingly be proportionate to its gravity. (People v. Nabora).  Sufficiency depends upon: a. the act constituting provocation b. the social standing of the person provoked c. the place and time when the provocation is made.  Between the provocation by the offended party and the commission of the crime, there should not be any interval in time. Reason: When there is an interval of time between the provocation and the commission of the crime, the perpetrator has time to regain his reason. Sufficient provocation as a requisite of incomplete self-defense Provocation as a mitigating circumstance It pertains to its absence It pertains to its on the part of the person defending himself. (People v. CA, G.R. No. 103613, 2001) presence on the part of the offended party. TIP: The common set-up given in a bar problem is that of provocation given by somebody against whom the person provoked cannot retaliate; thus the person provoked retaliated on a younger brother or on the father. Although in fact, there is sufficient provocation, it is not mitigating because the one who gave the provocation is not the one against whom the crime was committed. You have to look at two criteria: a. If from the element of time, (1) there is a material lapse of time stated in the problem and (2) there is nothing stated in the problem that the effect of the threat of provocation had prolonged and affected the offender at the time he committed the crime (3) then you use the criterion based on the time element. b. If there is that time element and at the same time, (1) facts are given indicating that at the time the offender committed the crime, he is still suffering from outrage of the threat or provocation done to him (2) then he will still get the benefit of this mitigating circumstance. Romera v. People (2004: Provocation and passion or obfuscation are not 2 separate mitigating circumstances. It is well-settled that if these 2 circumstances are based on the same facts, they should be treated together as one mitigating circumstance. It is clear that both circumstances arose from the same set of facts. Hence, they should not be treated as two separate mitigating circumstances. 5. Immediate Vindication of A Grave Offense Elements: (1) That there be a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degree. (2) That the felony is committed in vindication of such grave offense. A lapse of time is allowed between the vindication and the doing of the grave offense. (3) The vindication need not be done by the person upon whom the grave offense was committed Note: Lapse of time is allowed. The word ―immediate‖ used in the English text is not the correct translation. The Spanish text uses ―proxima.‖ Although the grave offense (slapping of the accused in front of many persons hours before
  • 55. CRIMINAL LAW REVIEWER 55 the killing), which engendered the perturbation of mind, was not so immediate, it was held that the influence thereof, by reason of its gravity, lasted until the moment the crime was committed. (People v. Parana). The question whether or not a certain personal offense is grave must be decided by the court, having in mind a. the social standing of the person, b. the place and c. the time when the insult was made. Vindication of a grave offense and passion or obfuscation cannot be counted separately and independently. People v. Torpio (2004: The mitigating circumstance of sufficient provocation cannot be considered apart from the circumstance of vindication of a grave offense. These two circumstances arose from one and the same incident, i.e., the attack on the appellant by Anthony, so that they should be considered as only one mitigating circumstance. Provocation Vindication It is made directly only to the person committing the felony. The grave offense may be committed against the offender‘s relatives mentioned by law. The offense need not be a grave offense. The offended party must have done a grave offense to the offender or his relatives. The provocation or threat must immediately precede the act. The grave offense may be proximate, which admits of an interval of time between the grave offense done by the offended party and the commission of the crime by the accused. It is a mere spite against the one giving the provocation or threat. It concerns the honor of the person. 6. Passion or obfuscation (Arrebato y Obsecacion) Elements: (1) The accused acted upon an impulse (2) The impulse must be so powerful that it naturally produces passion or obfuscation in him. Requisites: (1)That there be an act, both unlawful and sufficient to produce such condition of mind; and (2)That said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity. (People v. Alanguilang) Note: Passion or obfuscation must arise from lawful sentiments. Passion or obfuscation not applicable when: a. The act committed in a spirit of LAWLESSNESS. b. The act is committed in a spirit of REVENGE. The mitigating circumstance of obfuscation arising from jealousy cannot be invoked in favor of the accused whose relationship with the woman was illegitimate. Also, the act must be sufficient to produce such a condition of mind. If the cause of loss of self-control is trivial and slight, obfuscation is not mitigating. Moreover, the defense must prove that the act which produced the passion or obfuscation took place at a time not far removed from the commission of the crime. (People v. Gervacio, 1968) Passion and obfuscation may lawfully arise from causes existing only in the honest belief of the offender. US v. De la Cruz (1912): De la Cruz, in the heat of passion, killed the deceased who was his querida (lover) upon discovering her in the act of carnal communication with a mutual acquaintance. He claims that he is entitled to the mitigating circumstance of passion or obfuscation and that the doctrine in Hicks is inapplicable. Held: US v. Hicks is not applicable to the case. In Hicks, the cause of the alleged passion and obfuscation of the aggressor was the convict's vexation, disappointment and deliberate anger engendered by the refusal of the woman to continue to live in illicit relations with him, which she had a perfect reason to do. In this case, the impulse upon which the defendant acted was the sudden revelation that his paramour was untrue to him and his discovery of her in flagrante in the arms of another. This was a sufficient impulse in the ordinary and natural course of things to produce the passion and obfuscation which the law declares to be one of the mitigating circumstances to be taken into the consideration of the court. Passion and Obfuscation cannot co-exist with: (1) Vindication of grave offense  Exception: When there are other facts closely connected. Thus, where the deceased, had eloped with the daughter of the accused, and later when the deceased saw the accused coming, the deceased ran upstairs, there are 2 facts which are closely connected, namely: (1) elopement, which is a grave offense for the family of old customs, and (2) refusal to deal with him, a stimulus strong enough to produce
  • 56. CRIMINAL LAW REVIEWER 56 passion. The court in People v. Diokno (G.R. No. L-45100), considered both mitigating circumstances in favor of the accused. (2) Treachery (People v. Wong) Passion/Obfuscation v. Irresistible Force (Reyes, Revised Penal Code) Passion/Obfuscation Irresistible force Mitigating Circumstance Exempting circumstance Cannot give rise to physical force because it does not involves physical force. Physical force is a condition sine qua non. Passion/obfuscation comes from the offender himself. Irresistible force comes from a third person. Must arise from lawful sentiments to be mitigating. Irresistible force is unlawful. Passion/Obfuscation v. Provocation (Reyes, Revised Penal Code) Passion/Obfuscation Provocation Passion/obfuscation is produced by an impulse which may be caused by provocation. Provocation comes from the injured party. The offense which engenders the perturbation of mind need not be immediate. It is only required that the influence thereof lasts until the moment the crime is committed. Must immediately precede the commission of the crime. In both, the effect of the loss of reason and self- control on the part of the offender. 7. Voluntary Surrender Requisites: (1) That the offender had not been actually arrested (2) That the offender surrendered himself to a person in authority or to the latter‘s agent (3) That the surrender was voluntary. Two Mitigating Circumstances Under This Paragraph: (1) Voluntary surrender to a person in authority or his agents; (2) Voluntary confession of guilt before the court prior to the presentation of evidence for the prosecution. Whether or not a warrant of arrest had been issued is immaterial and irrelevant. Criterion is whether or not a. the offender had gone into hiding b. and the law enforcers do not know of his whereabouts. Note: For voluntary surrender to be appreciated, the surrender must be spontaneous, made in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities, either because (1) he acknowledges his guilt or (2) wishes to save them the trouble and expenses that would be necessarily incurred in his search and capture. (Andrada v. People). If none of these two reasons impelled the accused to surrender, the surrender is not spontaneous and therefore not voluntary. (People v. Laurel).  The accused must actually surrender his own person to the authorities, admitting complicity of the crime. Merely requesting a policeman to accompany the accused to the police headquarters is not voluntary surrender. (People v. Flores) Effect of Arrest General Rule: Not mitigating when defendant was in fact arrested. (People v. Conwi) Exceptions: (1) But where a person, after committing the offense and having opportunity to escape, voluntarily waited for the agents of the authorities and voluntarily gave up, he is entitled to the benefit of the circumstance, even if he was placed under arrest by a policeman then and there. (People v. Parana) (2) Where the arrest of the offender was after his voluntary surrender or after his doing an act amounting to a voluntary surrender to the agent of a person in authority. (People v. Babiera; People v. Parana) Person in Authority and his Agent Person in authority – is one directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws whether as an individual or as a member of some court or governmental corporation, board or commission. A barrio captain and a barangay chairman are also persons in authority. (Art. 152, RPC, as amended by PD No. 299). Agent of a person in authority – is a person, who, by direct provision of law, or by election or by competent authority, is charged with the maintenance of public order and the protection and security of life and property and any person who comes to the aid of persons in authority. (Art. 152, as amended by RA 1978). Time of Surrender The RPC does not distinguish among the various moments when the surrender may occur. (Reyes, Revised Penal Code). The fact that a warrant of arrest had already been issued is no bar to the consideration of that circumstance because the law does not require that the surrender be prior the arrest. (People v. Yecla and Cahilig). What is important is that the surrender be spontaneous.
  • 57. CRIMINAL LAW REVIEWER 57 8. Plea Of Guilt Requisites: (1) That the offender spontaneously confessed his guilt. (2) That the confession of guilt was made in open court, that is, before the competent court that is to try the case; and  The extrajudicial confession made by the accused is not voluntary confession because it was made outside the court. (People v. Pardo) (3) That the confession of guilt was made prior to the presentation of evidence for the prosecution.  The change of plea should be made at the first opportunity when his arraignment was first set.  A conditional plea of guilty is not mitigating.  Plea of guilt on appeal is not mitigating.  Withdrawal of plea of not guilty before presentation of evidence by prosecution is still mitigating. All that the law requires is voluntary plea of guilty prior to the presentation of the evidence by the prosecution.  A plea of guilty on an amended information will be considered as an attenuating circumstance if no evidence was presented in connection with the charges made therein. (People v. Ortiz) 9. Plea to a Lesser Offense Rule 116, sec. 2, ROC: At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. People v. Dawaton (2002): Information for murder was filed against Dawaton. When first arraigned he pleaded not guilty, but during the pre-trial he offered to plead guilty to the lesser offense of homicide but was rejected by the prosecution. The trial court sentenced him to death. He avers that he is entitled to the mitigating circumstance of plea of guilty. Held: While the accused offered to plead guilty to the lesser offense of homicide, he was charged with murder for which he had already entered a plea of not guilty. We have ruled that an offer to enter a plea of guilty to a lesser offense cannot be considered as an attenuating circumstance under the provisions of Art. 13 of RPC because to be voluntary the plea of guilty must be to the offense charged. Also, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires the consent of the offended party and the prosecutor before an accused may be allowed to plead guilty to a lesser offense necessarily included in the offense charged. The prosecution rejected the offer of the accused. 10. Physical Defects This paragraph does not distinguish between educated and uneducated deaf-mute or blind persons. Physical defect referred to in this paragraph is such as being armless, cripple, or a stutterer, whereby his means to act, defend himself or communicate with his fellow beings are limited. The physical defect that a person may have must have a relation to the commission of the crime. Where the offender is deaf and dumb, personal property was entrusted to him and he misappropriated the same. The crime committed was estafa. The fact that he was deaf and dumb is not mitigating since that does not bear any relation to the crime committed. If a person is deaf and dumb and he has been slandered, he cannot talk so what he did was he got a piece of wood and struck the fellow on the head. The crime committed was physical injuries. The Supreme Court held that being a deaf and dumb is mitigating because the only way is to use his force because he cannot strike back in any other way. 11. Illness Elements: (1) That the illness of the offender must diminish the exercise of his will-power (2) That such illness should not deprive the offender of consciousness of his acts. When the offender completely lost the exercise of will-power, it may be an exempting circumstance. It is said that this paragraph refers only to diseases of pathological state that trouble the conscience or will. A mother who, under the influence of a puerperal fever, killed her child the day following her delivery. People v. Javier (1999): Javier was married to the deceased for 41 years. He killed the deceased and then stabbed himself in the abdomen. Javier was found guilty of parricide. In his appeal, he claims that he killed his wife because he was suffering from insomnia for a month and at the time of the killing, his mind went totally blank and he did not know what he was doing. He also claims that he was insane then.
  • 58. CRIMINAL LAW REVIEWER 58 Held: No sufficient evidence or medical finding was offered to support his claim. The court also took note of the fact that the defense, during the trial, never alleged the mitigating circumstance of illness. The alleged mitigating circumstance was a mere afterthought to lessen the criminal liability of the accused. 12. Analogous Mitigating Circumstances Any other circumstance of similar nature and analogous to the nine mitigating circumstances enumerated in art. 513 may be mitigating. (1) The act of the offender of leading the law enforcers to the place where he buried the instrument of the crime has been considered as equivalent to voluntary surrender. (2) Stealing by a person who is driven to do so out of extreme poverty is considered as analogous to incomplete state of necessity. Canta v. People: Canta stole a cow but alleges that he mistook the cow for his missing cow. He made a calf suckle the cow he found and when it did, Canta thought that the cow he found was really his. However, he falsified a document describing the said cow’s cowlicks and markings. After getting caught, he surrendered the cow to the custody of the authorities in the municipal hall. Held: Canta’s act of voluntarily taking the cow to the municipal hall to place it in the custody of authorities (to save them the time and effort of having to recover the cow) was an analogous circumstance to voluntary surrender. (3) Over 60 years old with failing sight, similar to over 70 years of age mentioned in par. 2. (People v. Reantillo). (4) Voluntary restitution of stolen goods similar to voluntary surrender (People v. Luntao). (5) Impulse of jealous feelings, similar to passion and obfuscation. (People v. Libria). (6) Extreme poverty and necessity, similar to incomplete justification based on state of necessity. (People v. Macbul). (7) Testifying for the prosecution, without previous discharge, analogous to a plea of guilty. (People v. Narvasca). D. Aggravating Circumstances (ASKED 24 TIMES IN BAR EXAMS) Those circumstances which raise the penalty for a crime in its maximum period provided by law applicable to that crime or change the nature of the crime. Note: The list in this Article is EXCLUSIVE – there are no analogous aggravating circumstances. The aggravating circumstances must be established with moral certainty, with the same degree of proof required to establish the crime itself. According to the Revised Rules of Criminal Procedure, BOTH generic and qualifying aggravating circumstances must be alleged in the Information in order to be considered by the Court in imposing the sentence. (Rule 110, Sec. 9) Basis 1. the motivating power behind the act 2. the place where the act was committed 3. the means and ways used 4. the time 5. the personal circumstance of the offender and/or of the victim Kinds 1. GENERIC – Those that can generally apply to all crimes. Nos. 1, 2, 3 (dwelling), 4, 5, 6, 9, 10, 14, 18, 19, and 20 except ―by means of motor vehicles‖. A generic aggravating circumstance may be offset by a generic mitigating circumstance. 2. SPECIFIC – Those that apply only to particular crimes. Nos. 3 (except dwelling), 15, 16, 17 and 21. 3. QUALIFYING –Those that change the nature of the crime. Art. 248 enumerates the qualifying AC which qualify the killing of person to murder. If two or more possible qualifying circumstances were alleged and proven, only one would qualify the offense and the others would be generic aggravating. (ASKED TWICE BAR EXAMS) 4. INHERENT – Those that must accompany the commission of the crime and is therefore not considered in increasing the penalty to be imposed such as evident premeditation in theft, robbery, estafa, adultery and concubinage. 5. SPECIAL – Those which arise under special conditions to increase the penalty of the offense and cannot be offset by mitigating circumstances such as: a. quasi-recidivism (Art. 160) b. complex crimes (Art. 48) c. error in personae (Art. 49) d. taking advantage of public position and membership in an organized/syndicated crime group (Art. 62) Generic aggravating circumstances Qualifying aggravating circumstances The effect of a generic AC, not offset by any mitigating circumstance, is to increase the penalty which should be imposed upon the accused to the MAXIMUM PERIOD. The effect of a qualifying AC is not only to give the crime its proper and exclusive name but also to place the author thereof in such a situation as to deserve no other penalty than that specially prescribed by law for said crime. It is not an ingredient of the crime. It only affects the penalty to be imposed but the The circumstance affects the nature of the crime itself such that the offender shall be liable
  • 59. CRIMINAL LAW REVIEWER 59 crime remains the same for a more serious crime. The circumstance is actually an ingredient of the crime The circumstance can be offset by an ordinary mitigating circumstance Being an ingredient of the crime, it cannot be offset by any mitigating circumstance Aggravating circumstances which do not have the effect of increasing the penalty: (1) Aggravating circumstances which in themselves constitute a crime especially punishable by law. (2) Aggravating circumstances which are included by the law in defining a crime and prescribing the penalty therefore shall not be taken into account for the purpose of increasing the penalty. (Art. 62, par. 1). (3) The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. (Art. 62, par. 2). Aggravating circumstances which are personal to the offenders. Aggravating circumstances which arise: (1) from moral attributes of the offender; (2) from his private relations with the offended party; or (3) from any personal cause, shall only serve to aggravate the liability of the principals, accomplices, accessories as to whom such circumstances are attendant. (Art. 62, par. 3). Aggravating circumstances which depend for their application upon the knowledge of offenders. The circumstances which consist (1) in the material execution of the act, or (2) in the means employed to accomplish it, shall serve to aggravate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. (Art. 62, par. 4). 1. Generic TWENTY-ONE aggravating circumstances under Art. 14: 1. Taking Advantage of Public Office 2. In Contempt Of Or With Insult To Public Authorities 3. With Insult Or Lack Of Regard Due To Offended Party By Reason Of Rank, Age Or Sex 4. Abuse Of Confidence And Obvious Ungratefulness 5. Crime In Palace Or In Presence Of The Chief Executive 6. Nighttime; Uninhabited Place; With A Band 7. On Occasion Of A Calamity 8. Aid Of Armed Men Or Means To Ensure Impunity 9. Recidivism 10. Reiteration or Habituality 11. Price, Reward Or Promise 12. Inundation, Fire, Poison 13. Evident Premeditation 14. Craft, Fraud Or Disguise 15. Superior Strength Or Means To Weaken Defense 16. Treachery 17. Ignominy 18. Unlawful Entry 19. Breaking Wall, Floor, Roof 20. With Aid Of Persons Under 15 By Motor Vehicle 21. Cruelty 1. Taking Advantage of Public Office Par. 1 – ―that advantage be taken by the offender of his public position‖ This is applicable only if the offender is a public officer. The public officer must: (1) Use the influence, prestige or ascendancy which his office gives him (2) As means by which he realizes his purpose. The essence of the matter is presented in the inquiry, ―did the accused abuse his office in order to commit the crime?‖(U.S. v. Rodriguez) When a public officer (1) commits a common crime independent of his official functions and (2) does acts that are not connected with the duties of his office, (3) he should be punished as a private individual without this aggravating circumstance. Even if defendant did not abuse his office, if it is proven that he has failed in his duties as such public officer, this circumstance would warrant the aggravation of his penalty. Thus, the fact that the vice-mayor of a town joined a band of brigands made his liability greater. (U.S. v. Cagayan). The circumstance cannot be taken into consideration in offenses where taking advantage of official position is made by law an integral element of the crime such as in malversation (Art. 217) or falsification of public documents under Art. 171. Taking advantage of public position is also inherent in the following cases: (1) Accessories under Art. 19, par. 3 (harboring, concealing or assisting in the escape of the principal of the crime); and (2) Title VII of Book Two of the RPC (Crimes committed by public officers). 2. In Contempt of or With Insult to Public Authorities
  • 60. CRIMINAL LAW REVIEWER 60 Par. 2 – ―that the crime be committed in contempt of or with insult to the public authorities‖. Requisites: (1) That the public authority is engaged in the exercise of his functions. (2) That he who is thus engaged in the exercise of his functions is not the person against whom the crime is committed. (3) The offender knows him to be a public authority. (4) His presence has not prevented the offender from committing the criminal act. Public Authority / Person in Authority – is a person directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws. The councilor, mayor, governor, barangay captain, barangay chairman etc. are persons in authority. (Art. 152, as amended by P.D. 1232)  A school teacher, town municipal health officer, agent of the BIR, chief of police, etc. are now considered a person in authority. Par. 2 is not applicable if committed in the presence of an agent only such as a police officer. Agent - A subordinate public officer charged with the maintenance of public order and the protection and security of life and property, such as barrio policemen, councilmen, and any person who comes to the aid of persons in authority. (Art. 152, as amended by BP 873). Knowledge that a public authority is present is essential. Lack of such knowledge indicates lack of intention to insult public authority. If crime is committed against the public authority while in the performance of his duty, the offender commits direct assault without this aggravating circumstance. People v. Rodil (1981): There is the aggravating circumstance that the crime was committed in contempt of or with insult to public authorities when the chief of police was present when the incident occurred. The chief of police should be considered a public authority because he is vested with authority to maintain peace and order over the entire municipality. 3. With Insult or Lack of Regard Due to Offended Party by Reason of Rank, Age or Sex Par. 3 – ―That the act be committed with insult or in disregard of the respect due the offended party on account of his rank, age, or sex, or that is be committed in the dwelling of the offended party, if the latter has not given provocation.‖  Four circumstances are enumerated in this paragraph, which can be considered singly or together.  If all the 4 circumstances are present, they have the weight of one aggravating circumstance only.  There must be evidence that in the commission of the crime, the accused deliberately intended to offend or insult the sex or age of the offended party. (People v. Mangsat)  Disregard of rank, age or sex may be taken into account only in crimes against persons or honor. (People v. Pugal; People vs. Ga) a. RANK OF THE OFFENDED PARTY Designation or title used to fix the relative position of the offended party in reference to others. There must be a difference in the social condition of the offender and the offended party. b. AGE OF THE OFFENDED PARTY May refer to old age or tender age of the victim. c. SEX OF THE OFFENDED PARTY This refers to the female sex, not to the male sex. The aggravating circumstance is NOT to be considered in the following cases: (1) When the offender acted with passion and obfuscation. (People v. Ibanez) (2) When there exists a relationship between the offended party and the offender. (People v. Valencia) (3) When the condition of being a woman is indispensable in the commission of the crime. Thus, in rape, abduction, or seduction, sex is not aggravating. (People v. Lopez) d. DWELLING (Morada) Building or structure, exclusively used for rest and comfort. Thus, in the case of People v. Magnaye, a ―combination of a house and a store‖, or a market stall where the victim slept is not a dwelling.  This is considered an AC because in certain cases, there is an abuse of confidence which the offended party reposed in the offender by opening the door to him.  Dwelling need not be owned by the offended party.  It is enough that he used the place for his peace of mind, rest, comfort and privacy.  Dwelling should not be understood in the concept of a domicile: A person has more than one dwelling. So, if a man has so many wives and he gave them places of their own, each one is his own dwelling. If he is killed there, dwelling will be aggravating, provided that he also stays there once in a while.  If a crime of adultery was committed. Dwelling was considered aggravating on the part of the paramour. However, if the paramour was also residing in the same dwelling, it will not be aggravating.  The offended party must not give provocation. (People v. Ambis).  When a crime is committed in the dwelling of the offended party and the latter has not given
  • 61. CRIMINAL LAW REVIEWER 61 provocation, dwelling may be appreciated as an aggravating circumstance. Provocation in the aggravating circumstance of dwelling must be: (a) given by the offended party (b) sufficient, and (c) immediate to the commission of the crime. (People v. Rios, 2000)  It is not necessary that the accused should have actually entered the dwelling of the victim to commit the offense: it is enough that the victim was attacked inside his own house, although the assailant may have devised means to perpetrate the assault. (People v. Ompaid, 1969)  Dwelling includes dependencies, the foot of the staircase and the enclosure under the house. (U.S. v. Tapan) Illustration: Husband and wife quarrelled. Husband inflicted physical violence upon a wife. The wife left the conjugal home and went to the house of her sister bringing her personal belongings with her. The sister accommodated the wife in her home. The husband went to the house of the sister-in-law and tried to persuade the wife to return to the conjugal home but the wife refused since she was more at peace in her sister‘s home than in their conjugal abode. Due to the wife‘s refusal the husband pulled out a knife and stabbed the wife to death. It was held that dwelling was aggravating although it is not owned by the victim since she is considered a member of the family who owns the dwelling and that place is where she enjoyed privacy, peace of mind and comfort. People vs. Taoan: Teachers, professors, supervisors of public and duly recognized private schools, colleges and universities, as well as lawyers are persons in authority for purposes of direct assault and simple resistance, but not for purposes of aggravating circumstances in paragraph 2, Article 14. People v. Taño (2000): Held: Dwelling cannot be appreciated as an aggravating circumstance in this case because the rape was committed in the ground floor of a two- story structure, the lower floor being used as a video rental store and not as a private place of abode or residence. People v. Arizobal (2000): Generally, dwelling is considered inherent in the crimes which can only be committed in the abode of the victim, such as trespass to dwelling and robbery in an inhabited place. However, in robbery with homicide the authors thereof can commit the heinous crime without transgressing the sanctity of the victim's domicile. In the case at bar, the robbers demonstrated an impudent disregard of the inviolability of the victims' abode when they forced their way in, looted their houses, intimidated and coerced their inhabitants into submission, disabled Laurencio and Jimmy by tying their hands before dragging them out of the house to be killed. Dwelling is not aggravating in the following cases: (1) When both offender and offended party are occupants of the same house (U.S. v. Rodriguez), and this is true even if offender is a servant of the house. (People v. Caliso) (2) When the robbery is committed by the use of force things, dwelling is not aggravating because it is inherent. (U.S. v. Cas). But dwelling is aggravating in robbery with violence or intimidation of persons because this class or robbery can be committed without the necessity of trespassing the sanctity of the offended party‘s house. (People v. Cabato) (3) In the crime of trespass to dwelling, it is inherent or included by law in defining the crime. (4) When the owner of the dwelling gave sufficient and immediate provocation. (Art. 14 par. 3) 4. Abuse of Confidence and Obvious Ungratefulness Par. 4 – ―That the act be committed with abuse of confidence or obvious ungratefulness‖. Par. 4 provides two aggravating circumstances. If present in the same case, they must be independently appreciated. a. ABUSE OF CONFIDENCE (Abuso de confianza) (1) That the offended party had trusted the offender. (2) That the offender abused such trust by committing a crime against the offended party. (3) That the abuse of confidence facilitated the commission of the crime.  The confidence between the offender and the offended party must be immediate and personal.  It is inherent in malversation (Art. 217), qualified theft (Art. 310), estafa by conversion or misappropriation (Art. 315) and qualified seduction. (Art. 337). b. OBVIOUS UNGRATEFULNESS (1) That the offended party had trusted the offender; (2) That the offender abused such trust by committing a crime against the offended party; (3) That the act be committed with obvious ungratefulness. The ungratefulness must be obvious: (1) manifest and (2) clear. In a case where the offender is a servant, the offended party is one of the members of the family. The servant poisoned the child. It was held that
  • 62. CRIMINAL LAW REVIEWER 62 abuse of confidence is aggravating. This is only true, however, if the servant was still in the service of the family when he did the killing. If he was driven by the master out of the house for some time and he came back to poison the child, abuse of confidence will no longer be aggravating. The reason is because that confidence has already been terminated when the offender was driven out of the house. People v. Arrojado (2001): Arrojado is the first cousin of the victim, Mary Ann and lived with her and her father. Arrojado helped care for the victim’s father for which he was paid a P1,000 monthly salary. Arrojado killed Mary Ann by stabbing her with a knife. Thereafter he claimed that the latter committed suicide. Held: The aggravating circumstance of abuse of confidence is present in this case. For this aggravating circumstance to exist, it is essential to show that the confidence between the parties must be immediate and personal such as would give the accused some advantage or make it easier for him to commit the criminal act. The confidence must be a means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence. 5. Crime in Palace or in Presence of the Chief Executive Par. 5 – ―That the crime be committed in the palace of the Chief Executive or in his presence, or where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship.‖ If it is the Malacañang palace or a church it is aggravating regardless of whether State or official or religious functions are being held.  The President need not be in the palace.  His presence alone in any place where the crime is committed is enough to constitute the AC.  It also applies even if he is not engaged in the discharge of his duties in the place where the crime was committed. Note: Offender must have the intention to commit a crime when he entered the place. (People v. Jaurigue)  Cemeteries are not places dedicated for religious worship. Par. 2 Contempt or insult to public authorities Par. 5 Where public authorities are engaged in the discharge of their duties. Public authorities are engaged in the performance of their duties. Public duty is performed in their office Public duty is performed outside of their office The offended party may The public authority or may not be the public authority should not be the offended party  As regards the place where the public authorities are engaged in the discharge of their duties, there must be some performance of public functions. 6. Nighttime (Nocturnidad); Uninhabited Place (Despoblado); With a Band (Cuadrilla) Par. 6 ―That the crime be committed in the night time, or in an uninhabited place, or by a band, whenever such circumstances may facilitate the commission of the offense. Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band.‖ These 3 circumstances may be considered separately: (1) when their elements are distinctly perceived and (2) can subsist independently, (3) revealing a greater degree of perversity. Requisites: (1) When it facilitated the commission of the crime; or (2) When especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or (3) When the offender took advantage thereof for the purpose of impunity. a. NIGHTTIME (Nocturnidad) The commission of the crime must begin and be accomplished in the nighttime (after sunset and before sunrise).  Nighttime by and of itself is not an aggravating circumstance.  The offense must be actually committed in the darkness of the night.  When the place is illuminated by light, nighttime is not aggravating.  Nighttime need not be specifically sought for when: (1) the offender purposely took advantage of nighttime; or (2) it facilitated the commission of the offense. b. UNINHABITED PLACE (Desplobado) It is determined not by the distance of the nearest house to the scene of the crime but whether or not in the place of the commission of the offense, there was a reasonable possibility of the victim receiving some help.  Solitude must be sought to better attain the criminal purpose. (People v. Aguinaldo)  The offenders must choose the place as an aid either (1) to an easy and uninterrupted
  • 63. CRIMINAL LAW REVIEWER 63 accomplishment of their criminal designs, or (2) to insure concealment of the offense, that he might thereby be better secured against detection and punishment. (U.S. v. Vitug). c. BAND (Cuadrilla) There should (1) Be at least be four persons (2) At least 4 of them should be armed (3) and are principals by direct participation.  This aggravating circumstance is absorbed in the circumstance of abuse of superior strength.  This is inherent in brigandage.  The armed men must have acted together in the commission of the crime. Illustration: A is on board a banca, not so far away. B and C also are on board their respective bancas. Suddenly, D showed up from underwater and stabbed B. Is there an aggravating circumstance of uninhabited place here? Yes, considering the fact that A and C before being able to give assistance still have to jump into the water and swim towards B and the time it would take them to do that, the chances of B receiving some help was very little, despite the fact that there were other persons not so far from the scene. People v. Librando (2000): Edwin, his daughter Aileen, and a relative, Fernando, were traversing a hilly portion of a trail on their way home when they met Raelito Librando, Larry and Eddie. Edwin was carrying a torch at that time as it was already dark. Raelito inquired from Edwin the whereabouts of Fernando and without any warning hit Edwin with a piece of wood. Eddie followed suit and delivered another blow to Edwin. Edwin ran but he was chased by Raelito. Thereafter, the three men took turns hitting Edwin with pieces of wood until the latter fell and died. The trial court considered nighttime and uninhabited place as just one aggravating circumstance. Held: The court did not err in considering nighttime and uninhabited place as just one aggravating circumstance. The court cited the case of People vs. Santos where it has been held that if the aggravating circumstances of nighttime, uninhabited place or band concur in the commission of the crime, all will constitute one aggravating circumstance only as a general rule although they can be considered separately if their elements are distinctly perceived and can subsist independently, revealing a greater degree of perversity. People v. Bermas (1999): By and of itself, nighttime is not an aggravating circumstance; it becomes so only when: 1) it is specially sought by the offender; or 2) it was taken advantage of by him; or 3) it facilitates the commission of the crime by insuring the offender‘s immunity from capture. In this case, other than the time of the occurrence of the felony, nothing else suggests that it was consciously resorted to by Bermas. In fact, the crime was well illuminated by two pressure gas lamps. Also, if treachery is also present in the commission of the crime, nighttime is absorbed in treachery and can not be appreciated as a generic aggravating circumstance. 7. On Occasion of a Calamity Par. 7. ―That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune.‖ The rationale for this AC is the debased form of criminality of one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune and despoiling them.  The offender must take advantage of the calamity or misfortune.  ―OR OTHER CALAMITY OR MISFORTUNE‖ – refers to other conditions of distress similar to ―conflagration, shipwreck, earthquake or epidemic.‖ 8. Aid of Armed Men or Means to Ensure Impunity (Auxilio de Gente Armada) Par. 7 ―That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune‖ Requisites: (1) That the armed men or persons took indirectly part in the commission of the crime, (2) That the accused availed himself of their aid or relied upon them when the crime was committed. Not applicable -  When both the attacking party and the party attacked were equally armed.  When the accused as well as those who cooperated with him in the commission of the crime acted under the same plan and for the same purpose.  Casual presence, or when the offender did not avail himself of their aid nor knowingly count upon their assistance in the commission of the crime. Par. 6 By a band Par. 8 With aid of armed men Requires more than 3 armed malefactors At least two armed men Requires that more than three armed malefactors shall have This circumstance is present even if one of the offenders merely
  • 64. CRIMINAL LAW REVIEWER 64 acted together in the commission of an offense relied on their aid, for actual aid is not necessary Band members are all principals Armed men are mere accomplices People v. Licop: Aid of armed men includes ―armed women‖. Note: ―Aid of armed men‖ is absorbed by ―employment of a band‖. 9. Recidivism (Reincidencia) Par. 8 ―That the crime be committed with the aid of armed men or persons who insure or afford impunity.‖ Requisites: (1) That the offender is on trial for an offense; (2) That he was previously convicted by final judgment of another crime; (3) That both the first and the second offenses are embraced in the same title of the Code; (4) That the offender is convicted of the new offense. Different forms of repetition or habituality of offender a. Recidivism under Article 14 (9)—The offender at the time of his trial for one crime shall have been previously convicted by final judgment of another embraced in the same title of the Revised Penal Code. b. Repetition or reiteracion under Article 14 (9)—The offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty. c. Habitual delinquency under Article 62 (5)—The offender within a period of 10 years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, is found guilty of any of the said crimes a third time or another. d. Quasi-recidivism under Article 160—Any person who shall ` a felony after having been convicted by final judgment before beginning to serve such sentence or while serving such sentence shall be punished by the maximum period prescribed by law for the new felony In recidivism, the crimes committed should be felonies. There is no recidivism if the crime committed is a violation of a special law. What is controlling is the time of the trial, not the time of the commission of the offense (i.e. there was already a conviction by final judgment at the time of the trial for the second crime).  What is required is previous conviction at the time of the trial.  The best evidence of a prior conviction is a certified copy of the original judgment of conviction, and such evidence is always admissible and conclusive unless the accused himself denies his identity with the person convicted at the former trial. (Aquino, Revised Penal Code)  At the time of the trial means from the arraignment until after sentence is announced by the judge in open court. Recidivism does not prescribe. No matter how long ago the offender was convicted, if he is subsequently convicted of a crime embraced in the same title of the Revised Penal Code, it is taken into account as aggravating in imposing the penalty. Pardon does not erase recidivism, even if it is absolute because it only excuses the service of the penalty, not the conviction. However, if a person was granted an amnesty, and thereafter he is convicted of another crime of the same class as the former crimes, his former conviction would not be aggravating. According to Art. 89, amnesty extinguishes not only the penalty but also its effects. If the offender has  already served his sentence and  he was extended an absolute pardon, o the pardon shall erase the conviction including recidivism because there is no more penalty o so the pardon shall be understood as referring to the conviction or the effects of the crime. Illustration: In 1980, A committed robbery. While the case was being tried, he committed theft in 1983. He was also found guilty and was convicted of theft also in 1983. The conviction became final because he did not appeal anymore and the trial for the earlier crime of robbery ended in 1984 for which he was also convicted. He also did not appeal this decision. Is the accused a recidivist? NO. The subsequent conviction must refer to a felony committed later in order to constitute recidivism. The reason for this is at the time the first crime was committed, there was no other crime of which he was convicted so he cannot be regarded as a repeater. People vs. Molina (2000): To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copies of the sentences rendered against the accused. Nonetheless, the trial court may still give such AC credence if the accused does not object to the presentation. People v. Dacillo (2004): In order to appreciate recidivism as an aggravating circumstance, it is necessary to allege it in the information and to attach certified true copies of
  • 65. CRIMINAL LAW REVIEWER 65 the sentences previously meted out to the accused, in accordance with Rule 110, Section 8 of the Revised Rules of Criminal Procedure. 10. Reiteracion/Habituality Par. 10 ―That the offender has been previously punished by an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.‖ Requisites: (1) That the accused is on trial for an offense; (2) That he previously served sentence for another offense to which the law attaches: (a) an equal or (b) greater penalty, or (c) for 2 or more crimes to which it attaches lighter penalty than that for the new offense; and (3) That he is convicted of the new offense. In Reiteracion or Habituality, it is essential that the offender be previously punished; that is, he has served sentence. Par. 10 speaks of  penalty attached to the offense,  not the penalty actually imposed Par. 9 Recidivism Par. 10 Reiteracion It is enough that a final judgment has been rendered in the first offense. It is necessary that the offender shall have served out his sentence for the first offense. Requires that the offenses be included in the same title of the Code The previous and subsequent offenses must not be embraced in the same title of the Code Always to be taken into consideration in fixing the penalty to be imposed upon the accused Not always an aggravating circumstance Rationale is the proven tendency to commit a similar offense Rationale is the proven resistance to rehabilitation Art. 14, Par. 9 Recidivism Art. 62 par. 5 Habitual Delinquency Two convictions are enough At least three convictions are required The crimes are not specified; it is enough that they may be embraced under the same title of the Revised Penal Code The crimes are limited and specified to: a. serious physical injuries, b. Less serious physical injuries, c. robbery, d. theft, e. estafa or swindling and f. falsification There is no time limit between the first conviction and the subsequent conviction. Recidivism is imprescriptible. There is a time limit of not more than 10 years between every conviction computed from the first conviction or release from punishment thereof to conviction computed from the second conviction or release therefrom to the third conviction and so on It is a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance. If not offset, it would only increase the penalty prescribed by law for the crime committed to its maximum period Habitual delinquency is a special aggravating circumstance, hence it cannot be offset by any mitigating circumstance. Aside from the penalty prescribed by law for the crime committed, an additional penalty shall be imposed depending upon whether it is already the third conviction, the fourth, the fifth and so on Since reiteracion provides that the accused has duly served the sentence for previous conviction/s, or is legally considered to have done so,  quasi-recidivism cannot at the same time constitute reiteracion, hence the latter cannot apply to a quasi-recidivist. If the same set of facts constitutes recidivism and reiteracion,  the liability of the accused should be aggravated by recidivism which can be easily proven. People v. Cajara (2000): Accused Cajara raped 16- year old Marita in front of his common-law wife who is the half-sister of the victim and his two small children. The trial court convicted him as charged and sentenced him to death. Held: The records show that the crime was aggravated by reiteracion under Art. 14, par. 10, of The Revised Penal Code, the accused having been convicted of frustrated murder in 1975 and of homicide, frustrated homicide, trespass to dwelling, illegal possession of firearms and murder sometime in 1989 where his sentences were later commuted to imprisonment for 23 years and a fine of P200,000.00. He was granted conditional pardon by the President of the Philippines on 8 November 1991. Reiteracion or habituality under Art. 14, par. 10, herein cited, is present when the accused has been previously punished for an offense to which the law attaches an equal or greater penalty than that attached by law to the second offense or for two or more
  • 66. CRIMINAL LAW REVIEWER 66 offenses to which it attaches a lighter penalty. As already discussed, herein accused can be convicted only of simple rape and the imposable penalty therefor is reclusion perpetua. Where the law prescribes a single indivisible penalty, it shall be applied regardless of the mitigating or aggravating circumstances attendant to the crime, such as in the instant case. 11. Prize, Reward or Promise Par. 11 ―That the crime be committed in consideration of a price, reward, or promise.‖ When this AC is present, there must be 2 or more principals: a. the one who gives or offers the price or promise; and b. the one who accepts it.  Both of whom are principals to the former, because he directly induces the latter to commit the crime, and the latter because he commits it.  When this AC is present, it affects not only the person who received the price or reward, but also the person who gave it.  The evidence must show that one of the accused used money or valuable consideration for the purpose of inducing another to perform the deed. (U.S. v. Gamao).  If without previous promise it was given voluntarily after a crime was committed as an expression of his appreciation for the sympathy and aid shown by the other accused, it should not be taken into consideration for the purpose of increasing the penalty. The price, reward or promise:  Need not consist of or refer to material things; or  That the same were actually delivered, o it being sufficient that the offer made by the principal by inducement was accepted by the principal by direct participation before the commission of the offense. 12. lInundation, Fire, Poison Par. 12 – ―That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or international damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin.‖  Unless used by the offender as a means to accomplish a criminal purpose, any of the circumstances in paragraph 12 cannot be considered to increase the penalty or to change the nature of the offense.  When another AC already qualifies the crime, any of these AC‘s shall be considered as generic aggravating circumstance only.  Fire is not aggravating in the crime of arson.  Whenever a killing is done with the use of fire, as when you kill someone, you burn down his house while the latter is inside, this is murder. There is no such crime as murder with arson or arson with homicide. The crime is only murder. If the intent is to destroy property - the crime is arson even if someone dies as a consequence. If the intent is to kill - there is murder even if the house is burned in the process. Illustration: A and B were arguing about something. One argument led to another until A struck B to death with a bolo. A did not know that C, the son of B was also in their house and who was peeping through the door and saw what A did. Afraid that A might kill him too, he hid somewhere in the house. A then dragged B‘s body and poured gasoline on it and burned the house altogether. As a consequence, C was burned and eventually died too. As far as the killing of B is concerned, it is homicide since it is noted that they were arguing. It could not be murder. As far as the killing of C is concerned, it is arson since he intended to burn the house only. 13. Evident Premeditation (Premeditacion Conocida) Par. 12 ―That the act be committed with evident premeditation.‖ Requisites: (1) The time when the offender determined to commit the crime; (2) An act manifestly indicating that the culprit has clung to his determination; and (3) A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow is conscience to overcome the resolution of his will. Evident premeditation implies  a deliberate planning of the act  before executing it. The essence of premeditation  an opportunity to coolly and serenely think and deliberate o on the meaning and o consequences of what he planned to do,  an interval long enough for his conscience and better judgment to overcome his evil desire and scheme. (People v. Durante)  The premeditation must be based upon external facts, and must be evident, not merely suspected indicating deliberate planning.
  • 67. CRIMINAL LAW REVIEWER 67  The date and time when the offender determined to commit the crime is essential, because the lapse of time for the purpose of the third requisite is computed from that date and time.  After the offenders had determined to clung commit the crime, there must be a manifest indication that they clung to their determination.  Where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be taken for granted. (U.S. v. Cornejo)  Evident premeditation is inherent in robbery, adultery, estafa, and falsification. However, it may be aggravating in robbery with homicide if the premeditation included the killing of the victim. (People v. Valeriano)  In order that premeditation may exist, it is not necessary that the accused premeditated the killing of a particular individual. If the offender premeditated on the killing of any person (general attack), it is proper to consider against the offender the aggravating circumstance of evident premeditation, because whoever is killed by him is contemplated in the premeditation. (US v. Manalinde, 1909) Illustrations: 1. A and B fought on Monday. A told B that someday he will kill B. On Friday, A killed B. 2. C and D fought on Monday but since C already suffered so many blows, he told D, ―This week shall not pass, I will kill you.‖ On Friday, C killed D. Is there evident premeditation in both cases? None in both cases. What condition is missing to bring about evident premeditation? Evidence to show that between Monday and Friday, the offender clung to his determination to kill the victim, acts indicative of his having clung to his determination to kill B. 3. A and B had a quarrel. A boxed B. A told B, ―I will kill you this week.‖ A bought firearms. On Friday, he waited for B but killed C instead. Was there evident premeditation? There is aberratio ictus. So, qualify. Insofar as B is concerned, the crime is attempted murder because there is evident premeditation. However, that murder cannot be considered for C. Insofar as C is concerned, the crime is homicide because there was no evident premeditation. People v. Salpigao: Evident premeditation is presumed to exist when conspiracy is directly established. When conspiracy is merely implied, evident premeditation cannot be presumed, the latter must be proved just like any other fact. People v. Mondijar (2002): Held: There was no evident premeditation. For the circumstance of evident premeditation to be appreciated, the prosecution must present clear and positive evidence of the planning and preparation undertaken by the offender prior to the commission of the crime. Settled is the rule that evident premeditation, like any other circumstance that qualifies a killing to murder, must be established beyond reasonable doubt as conclusively and indubitably as the killing itself. In the present case, no evidence was presented by the prosecution as to when and how appellant planned and prepared for the killing of the victim. There is no showing of any notorious act evidencing a determination to commit the crime which could prove appellant's criminal intent. People v. Biso (2003): Dario, a black belt in karate, entered an eatery, seated himself beside Teresita and made sexual advances to her in the presence of her brother, Eduardo. Eduardo contacted his cousin, Biso, an ex-convict and a known toughie in the area, and related to him what Dario had done to Teresita. Eduardo and Pio, and 2 others decided to confront Dario. They positioned themselves in the alley near the house of Dario. When Dario arrived on board a taxicab, the four assaulted Dario. Eduardo held, with his right hand, the wrist of Dario and covered the mouth of Dario with his left hand. The 2 others held Dario's right hand and hair. Pio then stabbed Dario near the breast with a fan knife. Eduardo stabbed Dario and fled with his three companions from the scene. Held: There was no evident premeditation. The prosecution failed to prove that the four intended to kill Dario and if they did intend to kill him, the prosecution failed to prove how the malefactors intended to consummate the crime. Except for the fact that the appellant and his three companions waited in an alley for Dario to return to his house, the prosecution failed to prove any overt acts on the part of the appellant and his cohorts showing that that they had clung to any plan to kill the victim. 14. Craft (Astucia), Fraud (Fraude) or Disguise (Disfraz) Par. 14 ―That the craft, fraud or disguise be employed.‖ Involves intellectual trickery and cunning on the part of the accused. It is employed as a scheme in the execution of the crime. FRAUD  Insidious words or machinations used o to induce the victim o to act in a manner
  • 68. CRIMINAL LAW REVIEWER 68  which would enable the offender to carry out his design. CRAFT  Craft and fraud may be o absorbed in treachery if they have been deliberately adopted as the means, methods or forms for the treacherous strategy, or o they may co-exist independently where they are adopted for a different purpose in the commission of the crime. Fraud Craft When there is a DIRECT INDUCEMENT by insidious words or machinations The act of the accused was done in order NOT TO AROUSE SUSPICION DISGUISE  Resorting to any device to conceal identity.  The test of disguise is o whether the device or contrivance resorted to by the offender o was intended to or did make identification more difficult, such as the use of a mask, false hair or beard.  But if in spite of the use of handkerchief to cover their faces, the culprits were recognized by the victim, disguise is not considered aggravating. People v. San Pedro: Where the accused pretended to hire the driver in order to get his vehicle, it was held that there was craft directed to the theft of the vehicle, separate from the means subsequently used to treacherously kill the defenseless driver. People v. Masilang: There was also craft where after hitching a ride, the accused requested the driver to take them to a place to visit somebody, when in fact they had already planned to kill the driver. People v. Labuguen (2000): Craft involves intellectual trickery and cunning on the part of the offender. When there is a direct inducement by insidious words or machinations, fraud is present. By saying that he would accompany the victim to see the cows which the latter intended to buy, appellant was able to lure the victim to go with him. 15. Superior Strength or Means to Weaken Defense To TAKE ADVANTAGE of superior strength means  to use purposely excessive force  out of proportion to the means of defense available to the person attacked. Superiority may arise from  aggressor‘s sex, build, weapon or number  as compared to that of the victim (e.g. accused attacked an unarmed girl with a knife; 3 men stabbed to death the female victim). No advantage of superior strength when  one who attacks is overcome with passion and obfuscation or  when quarrel arose unexpectedly and the fatal blow was struck while victim and accused were struggling. Versus by a band:  In the circumstance of abuse of superior strength, what is taken into account is o not the number of aggressors nor the fact that they are armed o but their relative physical might vis-à-vis the offended party Means Employed to Weaken Defense  This circumstance is applicable only o to crimes against persons and o sometimes against person and property, such as robbery with physical injuries or homicide. The means used must not totally eliminate possible defense of the victim,  otherwise it will fall under treachery People v. Carpio: There must be evidence of notorious inequality of forces between the offender and the offended party in their age, size and strength, and that the offender took advantage of such superior strength in the commission of the crime. The mere fact that there were two persons who attacked the victim does not per se constitute abuse of superior strength. People v. Lobrigas (2002): The crime committed was murder qualified by the aggravating circumstance of abuse of superior strength. To appreciate abuse of superior strength, there must be a deliberate intent on the part of the malefactors to take advantage of their greater number. They must have notoriously selected and made use of superior strength in the commission of the crime. To take advantage of superior strength is to use excessive force that is out of proportion to the means for self- defense available to the person attacked; thus, the prosecution must clearly show the offenders' deliberate intent to do so. People v. Barcelon (2002): Held: Abuse of superior strength was present in the commission of the crime. The court cited the case of People vs. Ocumen, where an attack by a man with a deadly weapon upon an unarmed woman constitutes the circumstance of abuse of that superiority which his sex and the weapon used in the act afforded him, and from which the woman was unable to defend herself. The disparity in age between the assailant and the victim, aged 29 and 69, respectively, indicates physical superiority on appellant's part over the deceased. It did not matter that appellant was "dark" with a "slim body build" or "medyo mataba." What mattered was that the malefactor was male and armed with a lethal weapon that he used to slay the victim.
  • 69. CRIMINAL LAW REVIEWER 69 People v. Sansaet (2002): Held: Mere superiority in number, even assuming it to be a fact, would not necessarily indicate the attendance of abuse of superior strength. The prosecution should still prove that the assailants purposely used excessive force out of proportion to the means of defense available to the persons attacked. Finally, to appreciate the qualifying circumstance of abuse of superior strength, what should be considered is whether the aggressors took advantage of their combined strength in order to consummate the offense. To take advantage of superior strength means to purposely use excessive force out of proportion to the means available to the person attacked to defend himself. People v. Ventura (2004): Ventura armed with a .38 Caliber Home-made Revolver and Flores armed with a bladed weapon, entered the house of the Bocatejas by cutting a hole in the kitchen door. Ventura announced a hold-up and hit Jaime on the head and asked for the keys. Jaime called out for help and tried to wrestle the gun away from Ventura. Flores then stabbed Jaime 3 times. Flores also stabbed Jaime‘s wife Aileen who had been awakened. Aileen tried to defend herself with an electric cord to no avail. Aileen died on the hospital on the same day. Held: By deliberately employing a deadly weapon against Aileen, Flores took advantage of the superiority which his strength, sex and weapon gave him over his unarmed victim. The fact that Aileen attempted to fend off the attack on her and her husband by throwing nearby objects, such as an electric cord, at appellant Flores does not automatically negate the possibility that the latter was able to take advantage of his superior strength. 16. Treachery (Alevosia) Par. 16 – ―That the act be committed with treachery (alevosia) There is treachery when the 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 party might make.‖ Requisites: (1) The employment of means of execution that gave the person attacked no opportunity to defens himself or retaliate; and (2) That the offender consciously adopted the particular means, method or form of attack employed by him. Employment of means, methods and form in the commission of the crime:  which tend directly and specially to  ensure its execution  without risk to himself arising from the defense which the offended party might make. The essence of treachery is that by virtue of the means, method or form employed by the offender, the offended party was not able to put up any defense.  If the offended party was able to put up a defense, even only a token one, there is no treachery.  Instead, some other aggravating circumstance may be present but it is no longer treachery. Rules Regarding Treachery (1) Applicable only to crimes against persons. (2) Means, methods or forms need not insure accomplishment or consummation of the crime.  The treacherous character of the means employed in the aggression does not depend upon the result thereof but upon the means itself. Thus, frustrated murder could be aggravated by treachery. (3) The mode of attack must be consciously adopted.  The accused must make some preparation to kill the deceased in such manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself or retaliate. (People v. Tumaob)  It must be a result of meditation, calculation or reflection. (U.S. v. Balagtas) (4) Treachery cannot be presumed. The suddenness of the attack does not, of itself, suffice to support a finding of alevosia, even if the purpose was to kill, so long as the decision was made all of a sudden and the victim‘s helpless position was accidental. (People v. Lubreo). It must be proved by clear and convincing evidence. (People v. Santos). Attacks show intention to eliminate risk:  Victim asleep  Victim half-awake or just awakened  Victim grappling or being held.  Attacked from behind Additional rules:  When the aggression is CONTINUOUS, treachery must be present in the BEGINNING of the assault.  When the assault WAS NOT CONTINUOUS, in that there was an interruption, it is sufficient that treachery was present AT THE MOMENT THE FATAL BLOW WAS GIVEN. Illustration: A and B have been quarreling for some time. One day, A approached B and befriended him. B accepted. A proposed that to celebrate their renewed friendship, they were going to drink. B was having too much to drink. A was just waiting for him to get intoxicated and after which, he stabbed B.
  • 70. CRIMINAL LAW REVIEWER 70 A pretended to befriend B, just to intoxicate the latter. Intoxication is the means deliberately employed by the offender to weaken the defense of the other party. If this was the very means employed, the circumstance may be treachery and not abuse of superior strength or means to weaken the defense People vs. Ilagan: Suddenness of the attack does not by itself constitute treachery in the absence of evidence that the manner of attack was consciously adopted by the offender to render the victim defenseless. People v. Malejana: Treachery may still be appreciated even when the victim was forewarned of danger to his person. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. Thus, even a frontal attack could be treacherous when unexpected and on an unarmed victim who would be in no position to repel the attack or avoid it. Treachery cannot co-exist with passion and obfuscation. People v. Rendaje (2000): Treachery qualified the killing to murder. To constitute treachery, two conditions must concur: (1) the employment of means, methods or manner of execution that would ensure the offender's safety from any defense or retaliatory act on the part of the offended party; and (2) the offender's deliberate or conscious choice of the means, method or manner of execution. No one has positively testified on how Lennie was killed but the victim‘s body shows the manner in which she was attacked by her assailant. It eloquently speaks for itself. The injuries established the manner in which the killing was cruelly carried out with little or no risk to the assailant. The number of stab wounds, most of which were inflicted at the back of the child — unarmed and alone — shows the deliberateness, the suddenness and the unexpectedness of the attack, which thus deprived her of the opportunity to run or fight back. People v. Dumadag (2004): Prudente with his friends including Meliston agreed to meet at a swimming pool to celebrate the feast of St. John. On their way home, there was heavy downpour so they decided to take a shelter at a store where 2 men, 1 of whom is Dumadag are having some drinks. Dumadag offered Prudente a drink of Tanduay but the latter refused then left. Dumadag followed Prudente and stabbed the victim on his breast with a knife which resulted to his death. Held: As a general rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of attack was deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat. The rule does not apply if the attack was not preconceived but merely triggered by infuriation of the appellant on an act made by the victim. In the present case, it is apparent that the attack was not preconceived. It was triggered by the appellant's anger because of the victim's refusal to have a drink with the appellant and his companions. Treachery absorbs: (1) Abuse of superior strength (U.S. v. Estopia) (2) Use of means to weaken the defense (People v. Siatong) (3) Aid of armed men (People v. Ferrera) (4) Nighttime (People v. Kintuan) (5) Craft (People v. Malig) (6) By a band (People v. Ampo-an) 17. Ignominy Par. 17 ―That means be employed or circumstances brought about which add ignominy to the natural effects of the act.‖  It is a circumstance pertaining to the moral order, which adds disgrace to the material injury caused by the crime.  The means employed or the circumstances brought about must tend to make the effects of the crime MORE HUMILIATING or TO PUT THE OFFENDED PARTY TO SHAME.  Applicable to crimes against chastity, rape, less serious physical injuries, light or grave coercion and murder.  Raping a woman from behind is ignominous because that is not the normal form of intercourse, it is something which offends the morals of the offended woman. This is how animals do it. People v. Torrefiel (1947): The novelty of the manner in which the accused raped the victim by winding cogon grass around his genitals augmented the wrong done by increasing its pain and adding ignominy thereto. People v. Alfanta (1999): There was ignominy because the accused not only used missionary position but also ―the same position as dogs do.‖ He also inserted his finger inside her. Although the ―dog position‖ is not novel and often been used by couples, there is ignominy if the sexual act is performed not by consenting parties. People v. Cachola (2004): For ignominy to be appreciated, it is required that the offense be committed in a manner that tends to make its effect more humiliating, thus adding to the victim's moral suffering. Where the victim was already dead when his body or a part thereof was dismembered, ignominy cannot be taken against the accused. In this case, the information states that Victorino's sexual organ was severed after he was shot and there is no allegation that it was done to add ignominy to the natural effects of the act. We cannot, therefore, consider ignominy as an
  • 71. CRIMINAL LAW REVIEWER 71 aggravating circumstance. People v. Bumidang (2000): The aggravating circumstance of ignominy shall be taken into account if means are employed or circumstances brought about which add ignominy to the natural effects of the offense; or if the crime was committed in a manner that tends to make its effects more humiliating to the victim, that is, add to her moral suffering. It was established that Baliwang used the flashlight and examined the genital of Gloria before he ravished her. He committed his bestial deed in the presence of Gloria's old father. These facts clearly show that Baliwang deliberately wanted to further humiliate Gloria, thereby aggravating and compounding her moral sufferings. Ignominy was appreciated in a case where a woman was raped in the presence of her betrothed, or of her husband, or was made to exhibit to the rapists her complete nakedness before they raped her. 18. Unlawful Entry Par. 18 – ―That the crime be committed after an unlawful entry. There is an unlawful entry when an entrance of a crime a wall, roof, floor, door, or window be broken.‖  There is unlawful entry when an entrance is effected by a way not intended for the purpose.  Unlawful entry must be a means to effect entrance and not for escape.  There is no unlawful entry when the door is broken and thereafter the accused made an entry thru the broken door. The breaking of the door is covered by paragraph 19. Unlawful entry is inherent in the crime of trespass to dwelling and robbery with force upon things but aggravating in the crime of robbery with violence against or intimidation of persons. 19. Breaking Wall, Floor, Roof Par. 19 – ―as a means to the commission of the crime, a wall, roof, floor, door or window be broken‖.  To be considered as an AC, breaking the door must be utilized as a means to the commission of the crime.  It is only aggravating in cases where the offender resorted to any of said means TO ENTER the house.  If the wall, etc. is broken in order to get out of the place, it is not aggravating.  Because of the phrase ―as a means to the commission of a crime‖, it is not necessary that the offender should have entered the building. What aggravates the liability of the offender is the breaking of a part of the building as a means to the commission of the crime. 20. With Aid of Persons Under 15; By Motor Vehicle Par. 20 – ―That the crime be committed with the aid of persons under fifteen years of age or by means of motor vehicles, motorized watercraft, airships, or other similar means‖ a. With the aid of persons under 15 years of age  To repress, so far as possible, the frequent practice resorted to by professional criminals of availing themselves of minors taking advantage of their lack of criminal responsibility (remember that minors are given leniency when they commit a crime) b. By means of a motor vehicle To counteract the great facilities found by modern criminals in said means to commit crime and flee and abscond once the same is committed. This circumstance is aggravating only when used in the commission of the offense.  If motor vehicles are used only in the escape of the offender, it is not aggravating. It must have been used to facilitate the commission of the crime to be aggravating. ―Or other similar means‖ – the expression should be understood as referring to  MOTORIZED vehicles or  other efficient means of transportation similar to automobile or airplane. 21. Cruelty Requisites: (1) That the injury caused be deliberately increased by causing other wrong; (2) That the other wrong be unnecessary for the execution of the purpose of the offender. For it to exist, it must be shown that the accused enjoyed and delighted in making his victim suffer. If the victim was already dead when the acts of mutilation were being performed,  this would also qualify the killing to murder due to outraging of his corpse. Ignominy Cruelty shocks the moral conscience of man physical refers to the moral effect of a crime and it pertains to the moral order, whether or not refers to the physical suffering of the victim so he has to be alive
  • 72. CRIMINAL LAW REVIEWER 72 the victim is dead or alive People v. Catian (2002): Catian repeatedly struck Willy with a "chako" on the head, causing Willy to fall on his knees. Calunod seconded by striking the victim with a piece of wood on the face. When Willy finally collapsed, Sumalpong picked him up, carried him over his shoulder, and carried Willy to a place where they burned Willy. The latter‘s skeletal remains were discovered by a child who was pasturing his cow near a peanut plantation. Held: The circumstance of cruelty may not be considered as there is no showing that the victim was burned while he was still alive. For cruelty to exist, there must be proof showing that the accused delighted in making their victim suffer slowly and gradually, causing him unnecessary physical and moral pain in the consummation of the criminal act. No proof was presented that would show that accused-appellants deliberately and wantonly augmented the suffering of their victim. People v. Guerrero (2002): Appellant first severed the victim's head before his penis was cut-off. This being the sequence of events, cruelty has to be ruled out for it connotes an act of deliberately and sadistically augmenting the wrong by causing another wrong not necessary for its commission, or inhumanely increasing the victim's suffering. As testified to by Dr. Sanglay, and reflected in her medical certificate, Ernesto in fact died as a result of his head being severed. No cruelty is to be appreciated where the act constituting the alleged cruelty in the killing was perpetrated when the victim was already dead. 1. Qualifying a. Decree Codifying the Laws on llegal/Unlawful Possession etc. of Firearms, Ammunition or Explosives (P.D. 1866, as amended by R.A. 8294) b. The Comprehensive Dangerous Drugs Act of 2002 (R.A.9165) 1. Decree Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition, of Firearms, Ammunition or Explosives (P.D. 1866, as amended by R.A. 8294) as an aggravating circumstance (Asked once in the Bar during 1979-1982, twice during 2000-2006) Acts punished 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or ammunition…  Provided, That no other crime is committed. a. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. b. If the violation of this section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat. 2. Unlawful manufacture, sale, acquisition, disposition or possession of explosives. a. When a person commits any of the crimes defined in the Revised Penal Code or special laws  with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons,  the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. 3. Tampering of firearm's serial number. 4. Repacking or altering the composition of lawfully manufactured explosives. People vs. De Gracia (1994): Ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession. Palaganas vs. Court of Appeals (2006): With the passage of Republic Act. No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating circumstance. Note: Under 2012 Supreme Court Syllabus, acts punishable under PD 1866, as amended by RA 8294, are under the subtopic qualifying aggravating circumstances but tagged as AGGRAVATING only. People vs. Ladjaalam (2000): If an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the ―other crime‖ is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of
  • 73. CRIMINAL LAW REVIEWER 73 firearms. 2. Comprehensive Dangerous Drugs Act of 2002 (RA 9165) i. As a qualifying aggravating circumstance Section 25. Qualifying Aggravating Circumstances in the Commission of a Crime by an Offender Under the Influence of Dangerous Drugs. – Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable. ii. Immunity from prosecution and punishment, coverage Sec. 33. Immunity from Prosecution and Punishment. – Notwithstanding the provisions of Section 17, Rule 119 of the Revised Rules of Criminal Procedure and the provisions of Republic Act No. 6981 or the Witness Protection, Security and Benefit Act of 1991, any person who has violated Sections 7, 11, 12, 14, 15, and 19, Article II of this Act, who voluntarily gives information about any violation of Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this Act as well as any violation of the offenses mentioned if committed by a drug syndicate, or any information leading to the whereabouts, identities and arrest of all or any of the members thereof; and who willingly testifies against such persons as described above, shall be exempted from prosecution or punishment for the offense with reference to which his/her information of testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution: Provided, That the following conditions concur: (1) The information and testimony are necessary for the conviction of the persons described above; (2) Such information and testimony are not yet in the possession of the State; (3) Such information and testimony can be corroborated on its material points; (4) the informant or witness has not been previously convicted of a crime involving moral turpitude, except when there is no other direct evidence available for the State other than the information and testimony of said informant or witness; and (5) The informant or witness shall strictly and faithfully comply without delay, any condition or undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant of immunity from prosecution and punishment. Provided, further, That this immunity may be enjoyed by such informant or witness who does not appear to be most guilty for the offense with reference to which his/her information or testimony were given: Provided, finally, That there is no direct evidence available for the State except for the information and testimony of the said informant or witness. Sec. 34. Termination of the Grant of Immunity. – The immunity granted to the informant or witness, as prescribed in Section 33 of this Act, shall not attach should it turn out subsequently that the information and/or testimony is false, malicious or made only for the purpose of harassing, molesting or in any way prejudicing the persons described in the preceding Section against whom such information or testimony is directed against. In such case, the informant or witness shall be subject to prosecution and the enjoyment of all rights and benefits previously accorded him under this Act or any other law, decree or order shall be deemed terminated. In case an informant or witness under this Act fails or refuses to testify without just cause, and when lawfully obliged to do so, or should he/she violate any condition accompanying such immunity as provided above, his/her immunity shall be removed and he/she shall likewise be subject to contempt and/or criminal prosecution, as the case may be, and the enjoyment of all rights and benefits previously accorded him under this Act or in any other law, decree or order shall be deemed terminated. In case the informant or witness referred to under this Act falls under the applicability of this Section hereof, such individual cannot avail of the provisions under Article VIII of this Act. iii. Minor offenders Sec. 66. Suspension of Sentence of a First-Time Minor Offender. – An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of age at the time when judgment should have been promulgated after having been found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions: (a) He/she has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code; or of any special penal laws; (b) He/she has not been previously committed to a Center or to the care of a DOH-accredited physician; and (c) The Board favorably recommends that his/her sentence be suspended.
  • 74. CRIMINAL LAW REVIEWER 74 While under suspended sentence, he/she shall be under the supervision and rehabilitative surveillance of the Board, under such conditions that the court may impose for a period ranging from six (6) months to eighteen (18) months. Upon recommendation of the Board, the court may commit the accused under suspended sentence to a Center, or to the care of a DOH-accredited physician for at least six (6) months, with after-care and follow-up program for not more than eighteen (18) months. In the case of minors under fifteen (15) years of age at the time of the commission of any offense penalized under this Act, Article 192 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended by Presidential Decree No. 1179 shall apply, without prejudice to the application of the provisions of this Section. Sec. 67. Discharge After Compliance with Conditions of Suspended Sentence of a First-Time Minor Offender. – If the accused first time minor offender under suspended sentence complies with the applicable rules and regulations of the Board, including confinement in a Center, the court, upon a favorable recommendation of the Board for the final discharge of the accused, shall discharge the accused and dismiss all proceedings. Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge all official records, other than the confidential record to be retained by the DOJ relating to the case. Such an order, which shall be kept confidential, shall restore the accused to his/her status prior to the case. He/she shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made of him for any purpose. Sec. 68. Privilege of Suspended Sentence to be Availed of Only Once by a First-Time Minor Offender. – The privilege of suspended sentence shall be availed of only once by an accused drug dependent who is a first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section 15 of this Act but not more than eighteen (18) years of age at the time when judgment should have been promulgated. Sec. 69. Promulgation of Sentence for First-Time Minor Offender. – If the accused first-time minor offender violates any of the conditions of his/her suspended sentence, the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance over him, including the rules and regulations of the Center should confinement be required, the court shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person. Sec. 70. Probation or Community Service for a First-Time Minor Offender in Lieu of Imprisonment. – Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation, even if the sentence provided under this Act is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. In case of probation, the supervision and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of the probation, the Board shall submit a written report to the court recommending termination of probation and a final discharge of the probationer, whereupon the court shall issue such an order. The community service shall be complied with under conditions, time and place as may be determined by the court in its discretion and upon the recommendation of the Board and shall apply only to violators of Section 15 of this Act. The completion of the community service shall be under the supervision and rehabilitative surveillance of the Board during the period required by the court. Thereafter, the Board shall render a report on the manner of compliance of said community service. The court in its discretion may require extension of the community service or order a final discharge. In both cases, the judicial records shall be covered by the provisions of Sections 60 and 64 of this Act. If the sentence promulgated by the court requires imprisonment, the period spent in the Center by the accused during the suspended sentence period shall be deducted from the sentence to be served. Section 71. Records to be kept by the Department of Justice. – The DOJ shall keep a confidential record of the proceedings on suspension of sentence and shall not be used for any purpose other than to determine whether or not a person accused under this Act is a first-time minor offender. iv. Application/Non application of RPC provisions (Sec. 98, R.A. No. 9165) provisions (sec. 98) cf. Art. 10, RPC Section 98, RA 9165. Limited Applicability of the Revised Penal Code. – Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death. Art. 10, RPC. Offenses not subject to the provisions of this Code. — Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the
  • 75. CRIMINAL LAW REVIEWER 75 latter should specially provide the contrary. OTHER AGGRAVATING CIRCUMSTANCE Organized or Syndicated Crime Group (Art. 62, RPC) Organized or syndicated crime group: a. A group of two or more persons b. collaborating, confederating or mutually helping one another c. for the purpose of gain in the commission of a crime. Special aggravating circumstance The maximum penalty shall be imposed  if the offense was committed by any person  who belongs to an organized or syndicated crime group. E. Alternative Circumstances (ASKED TWICE IN BAR EXAMS) THREE TYPES of alternative circumstances: 1. Relationship 2. Intoxication 3. Degree of education/instruction IMPORTANT POINT: Circumstances which must be taken in consideration as aggravating or mitigating according to the nature and effects of the crime 1. Relationship (BRADSS) i. Spouse ii. Ascendant iii. Descendant iv. Brother v. Sister vi. Relative by Affinity a. Where relationship is exempting In the case of an accessory who is related to the principal within the relationship prescribed in Article 20; Also in Article 247, a spouse does not incur criminal liability for a crime of less serious physical injuries or serious physical injuries if this was inflicted after having surprised the offended spouse or paramour or mistress committing actual sexual intercourse. Those commonly given in Article 332 when the crime of theft, malicious mischief and swindling or estafa. b. Where relationship is aggravating In CRIMES AGAINST PERSONS in cases where  the offended party is a relative of a higher degree than the offender (grandson kills grandfather), or  when the offender and the offended party are relatives of the same level, as killing a brother, a brother-in-law, a half-brother or adopted brother. When CRIME AGAINST PERSONS is any of the SERIOUS PHYSICAL INJURIES (Art. 263), even if the offended party is a descendant of the offender, relationship is AGGRAVATING.  But the serious physical injuries must not be inflicted by a parent upon his child by excessive chastisement. When the crime is LESS SERIOUS PHYSICAL INJURIES OR SLIGHT PHYSICAL INJURIES  if the offended party is a relative of a higher degree than the offender When crime against persons is HOMICIDE OR MURDER,  relationship is aggravating even if the victim of the crime is a relative of lower degree. In CRIMES AGAINST CHASTITY,  relationship is always aggravating In the CRIME OF QUALIFIED SEDUCTION,  the offended woman must be a virgin and less than 18 years old.  But if the offender is a brother of the offended woman or an ascendant of the offended woman, o regardless of whether the woman is of bad reputation, o even if the woman is 60 years old or more,  crime is qualified seduction. In such a case, relationship is qualifying. c. Where relationship is mitigating When the CRIME IS LESS SERIOUS PHYSICAL INJURIES OR SLIGHT PHYSICAL INJURIES  if the offended party is a relative of a higher degree than the offender When crime against persons is HOMICIDE OR MURDER,  relationship is aggravating even if the victim of the crime is a relative of lower degree. In CRIMES AGAINST CHASTITY,  relationship is always aggravating In the CRIME OF QUALIFIED SEDUCTION,  the offended woman must be a virgin and less than 18 years old.  But if the offender is a brother of the offended woman or an ascendant of the offended woman, o regardless of whether the woman is of bad reputation, o even if the woman is 60 years old or more,  crime is qualified seduction. In such a case, relationship is qualifying. When the CRIME IS LESS SERIOUS People v. Atop (1998): 11-year-old Regina lives with
  • 76. CRIMINAL LAW REVIEWER 76 her grandmother. Atop is the common-law husband of her grandmother. Atop was found guilty of 4 counts of rape which was committed in 1993 (2x), 1994 and 1995. The lower court took into account the Aggravating Circumstance of relationship. Held: The law cannot be stretched to include persons attached by common-law relations. In this case, there is no blood relationship or legal bond that links Atop to his victim. People v. Marcos (2001): In order that the alternative circumstance of relationship may be taken into consideration in the imposition of the proper penalty, the offended party must either be the (a) spouse, (b) ascendant, (c) descendant, (d) legitimate, natural or adopted brother or sister, or (e) relative by affinity in the same degree, of the offender.. The rule is that relationship is aggravating in crimes against persons as when the offender and the offended party are relatives of the same level, such as killing a brother. 2. Intoxication It is only the circumstance of intoxication which a. if not mitigating, b. is automatically aggravating. a. When mitigating (1) There must be an indication that (a) because of the alcoholic intake of the offender, (b) he is suffering from diminished self- control. (c) It is not the quantity of alcoholic drink. (d) Rather it is the effect of the alcohol upon the offender which shall be the basis of the mitigating circumstance. (2) That offender is (a) not a habitual drinker and (b) did not take alcoholic drink with the intention to reinforce his resolve to commit crime b. When Aggravating: (1) If intoxication is habitual (2) If it is intentional to embolden offender to commit crime People v. Camano (1982): Intoxication is mitigating if accidental, not habitual nor intentional, i.e., not subsequent to the plan to commit the crime. It is aggravating if habitual or intentional. To be mitigating, it must be indubitably proved. A habitual drunkard is one given to intoxication by excessive use of intoxicating drinks. The habit should be actual and confirmed. It is unnecessary that it be a matter of daily occurrence. Intoxication lessens the individual resistance to evil thought and undermines will-power making its victim a potential evil doer. In this case, the intoxication of the appellant not being habitual and considering that the said appellant was in a state of intoxication at the time of the commission of the felony, the alternative circumstance of intoxication should be considered mitigating. 3. Degree of Instruction/ Education Refers to the lack of sufficient intelligence of and knowledge of the full significance of one‘s act Being illiterate does not mitigate liability if crime committed is one which one inherently understands as wrong (e.g. parricide) To be considered mitigating, degree of instruction must have some reasonable connection to the offense. F. Absolutory Causes There are FOUR TYPES of absolutory circumstances: 1. INSTIGATION 2. PARDON 3. OTHER ABSOLUTORY CAUSES 4. ACTS NOT COVERED BY LAW AND IN CASE OF EXCESSIVE PUNISHMENT (ART. 5) IMPORTANT POINTS: Acts not covered by law and in case of excessive punishment (art. 5) Absolutory causes are those where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed. 1. Instigation Entrapment Instigation Ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan The instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal. The means originate from the mind of the criminal. The law enforcer conceives the commission of the crime and suggests to the accused who carries it into execution. A person has planned or is about to commit a crime and ways and means are resorted to by a public officer to trap and catch the criminal. A public officer or a private detective induces an innocent person to commit a crime and would arrest him upon or after the commission of the crime by the latter. Not a bar to the prosecution and conviction of the lawbreaker. The accused must be acquitted because the offender simply acts as a tool of the law enforcers EXAMPLE OF ENTRAPMENT: A, a government anti-narcotics agent, acted as a poseur buyer of shabu and negotiated with B, a suspected drug pusher who is unaware that A is a police officer. A then paid B in marked money and
  • 77. CRIMINAL LAW REVIEWER 77 the latter handed over a sachet of shabu. Upon signal, the cops closed in on B EXAMPLE OF INSTIGATION: A, leader of an anti-narcotics team, approached and persuaded B to act as a buyer of shabu and transact with C, a suspected pusher. B was given marked money to pay C for a sachet of shabu. After the sale was consummated, the cops closed in and arrested both B and C. People v. Pacis (2002): Yap, an NBI agent, received information that a Pacis was offering to sell ½ kg of "shabu." A buy-bust operation was approved. The informant introduced Yap to Pacis as an interested buyer. They negotiated the sale of ½ kg of shabu. Pacis handed to Yap a paper bag with the markings "Yellow Cab". While examining it, Pacis asked for the payment. Yap gave the "boodle money" to Pacis. Upon Pacis's receipt of the payment, the officers identified themselves as NBI agents and arrested him. Held: The operation that led to the arrest of appellant was an entrapment, not instigation. In entrapment, ways and means are resorted to for the purpose of trapping and capturing lawbreakers in the execution of their criminal plan. In instigation, instigators practically induce the would-be defendant into the commission of the offense and become co-principals themselves. Entrapment is sanctioned by law as a legitimate method of apprehending criminal elements engaged in the sale and distribution of illegal drugs. US v. Phelps (1910): Phelps was charged and found guilty for violating the Opium Law (Act No. 1761). Phelps was induced by Smith, an employee of the Bureau of Internal Revenue, into procuring opium, providing for a venue and making arrangements for the two of them to smoke opium. Held: Smith not only suggested the commission of the crime but also expressed his desire to commit the offense in paying the amount required for the arrangements. Such acts done by employees of government in encouraging or inducing persons to commit a crime in order to prosecute them are most reprehensible. This is an instance of instigation where Smith, the instigator (who is either a public officer or a private detective) practically induces the would-be accused into the commission of the offense. People v. Lua Chu and Uy Se Tieng (1931) Held: Entrapment is not a case where an innocent person is induced to commit a crime merely to prosecute him, but it simply a trap set to catch a criminal. Entrapment - Entrapping persons into crime for the purpose of instituting criminal prosecutions. It is a scheme or technique ensuring the apprehension of the criminals by being in the actual crime scene. The law officers shall not be guilty to the crime if they have done the following: a. He does not induce a person to commit a crime for personal gain or is not involved in the planning of the crime. b. Does take the necessary steps to seize the instrument of the crime and to arrest the offenders before he obtained the profits in mind. Instigation - The involvement of a law officer in the crime itself in the following manner: a. He induces a person to commit a crime for personal gain. b. Doesn‘t take the necessary steps to seize the instrument of the crime & to arrest the offenders before he obtained the profits in mind. c. He obtained the profits in mind even through afterwards does take the necessary steps seize the instrument of the crime and to arrest the offenders. 2. Pardon General rule: Pardon does not extinguish criminal action (Art 23). Exception: Pardon by marriage between the accused and the offended party in cases of SEDUCTION, ABDUCTION, RAPE AND ACTS OF LASCIVIOUSNESS (Art 344). 3. Other Absolutory Causes a. Spontaneous desistance b. Light felonies not consummated c. Accessories in light felonies d. Accessories exempt under Article 20 e. Trespass to dwelling to prevent serious harm to self f. exemption from criminal liability in crimes against property g. Under Article 332, exemptions from criminal liability for cases of theft, swindling and malicious mischief. There would only be civil liability. h. Death under exceptional circumstances (Art. 247) i. Under Article 219, discovering secrets through seizure of correspondence of the ward by their guardian is not penalized. j. Ways on how criminal liability is extinguished under Art 89. 4. Acts Not Covered By Law And In Case Of Excessive Punishment Article 5 covers two situations:
  • 78. CRIMINAL LAW REVIEWER 78 a. The court cannot convict the accused because the acts do not constitute a crime. The proper judgment is acquittal, but the court is mandated to report to the Chief Executive that said act be made subject of penal legislation and why. b. Where the court finds the penalty prescribed for the crime too harsh considering the conditions surrounding the commission of the crime, the judge should impose the law the judge should impose the law. The most that he could do is recommend to the Chief Executive to grant executive clemency. People v. Veneracion (1995): Held: The law plainly and unequivocally provides that ―when by reason or on the occasion of rape, a homicide is committed, the penalty shall be death. Courts are not concerned with wisdom, efficacy or morality of law. The discomfort faced by those forced by law to impose death penalty is an ancient one, but it is a matter upon which judges have no choice. The Rules of Court mandates that after an adjudication of guilt, the judges should impose the proper penalty and civil liability provided for by the law on the accused. EXTENUATING CIRCUMSTANCES Circumstances which mitigate the criminal liability of the offender but not found in Article 13 Illustration: A kleptomaniac is criminally liable. But he would be given the benefit of a mitigating circumstance analogous to paragraph 9 of Article 13, that of suffering from an illness which diminishes the exercise of his will poser without, however, depriving him of the consciousness of his act. An unwed mother killed her child in order to conceal a dishonor. The concealment of dishonor is an extenuating circumstance insofar as the unwed mother or the maternal grandparents are concerned, but not insofar as the father of the child is concerned. Mother killing her new born child to conceal her dishonor, penalty is lowered by two degrees. Since there is a material lowering of the penalty or mitigating the penalty, this is an extenuating circumstance. CHAPTER IV. PERSONS CRIMINALLY LIABLE/DEGREE OF PARTICIPATION Including A. DECREE PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS (P.D. 1829) Under the Revised Penal Code, when more than one person participated in the commission of the crime, the law looks into their participation because in punishing offenders, the Revised Penal Code classifies them as: A. PRINCIPAL B. ACCOMPLICE C. ACCESSORY This classification is true only under the RPC and is not applied under special laws, because the penalties under the latter are never graduated. Do not use the term ―principal‖ when the crime committed is a violation of special law (use the term ―offender/s, culprit/s, accused) As to the liability of the participants in the grave, less grave or light felony:  When the felony is grave, or less grave, all participants are criminally liable.  But when the felony is only light, only the principal and the accomplice are liable. The accessory is not.  Therefore, it is only when the light felony is against persons or property that criminal liability attaches to the principal or accomplice, even though the felony is only attempted or frustrated, but accessories are not liable for light felonies. A. Principal 1. By Direct Participation 2. By Inducement 3. By Indispensable Cooperation 1. By Direct Participation Those who are liable:  materially execute the crime;  appear at the scene of the crime;  perform acts necessary in the commission of the offense. Why one who does not appear at the scene of the crime is not liable:  his non-appearance is deemed desistance which is favored and encouraged.  conspiracy is generally not a crime unless the law specifically provides a penalty therefore.  there is no basis for criminal liability because there is no criminal participation.
  • 79. CRIMINAL LAW REVIEWER 79 2. By Inducement Inducement must be strong enough that the person induced could not resist.  This is tantamount to an irresistible force compelling the person induced to carry out the crime.  Ill-advised language is not enough unless he who made such remark or advice is a co-conspirator in the crime committed. When does a principal by induction become liable:  The principal by induction becomes liable only when the principal by direct participation committed the act induced. What are the effects of acquittal of principal by direct participation upon the liability of principal by inducement:  Conspiracy is negated by the acquittal of co- defendant. Illustrations: a. While in the course of a quarrel, a person shouted to A, ―Kill him! Kill him!‖ A killed the other person. Is the person who shouted criminally liable? Is that inducement? No. The shouting must be an irresistible force for the one shouting to be liable. b. There was a quarrel between two families. One of the sons of family A came out with a shotgun. His mother then shouted, ―Shoot!‖ He shot and killed someone. Is the mother liable? No. People v. Valderrama (1993): Ernesto shouted to his younger brother Oscar, ―Birahin mo na, birahin mo na!‖ Oscar stabbed the victim. It was held that there was no conspiracy. Joint or simultaneous action per se is not indicia of conspiracy without showing of common design. Oscar has no rancor with the victim for him to kill the latter. Considering that Ernesto had great moral ascendancy and influence over Oscar, being much older (35 years old) than the latter, who was 18 years old, and it was Ernesto who provided his allowance, clothing as well as food and shelter, Ernesto is principal by inducement. People v. Agapinay (1990): The one who uttered ―kill him, we will bury him‖ while the felonious aggression was taking place cannot be held liable as principal by inducement. Utterance was said in the excitement of the hour, not a command to be obeyed. People v. Madall (1990): The son was mauled. The family was not in good terms with their neighbors. The father challenged everybody and when the neighbors approached, he went home to get a rifle. The shouts of his wife ―here comes another, shoot him‖ cannot make the wife a principal by inducement. It is not the determining cause of the crime in the absence of proof that the words had great influence over the husband. Neither is the wife‘s act of beaming the victim with a flashlight indispensable to the killing. She assisted her husband in taking good aim, but such assistance merely facilitated the felonious act of shooting. Considering that it was not so dark and the husband could have accomplished the deed without his wife‘s help, and considering further that doubts must be resolved in favor of the accused, the liability of the wife is only that of an accomplice. 3. By Indispensable Cooperation The focus is not just on participation but on the importance of participation in committing the crime. The basis is the importance of the cooperation to the consummation of the crime.  If the crime could hardly be committed without such cooperation, then such cooperator would be a principal.  If the cooperation merely facilitated or hastened the consummation of the crime, the cooperator is merely an accomplice. In case of doubt, favor the lesser penalty or liability. Apply the doctrine of pro reo. B. Accomplices When is one regarded as an accomplice  Determine if there is a conspiracy.  If there is, as a general rule, the criminal liability of all will be the same, because the act of one is the act of all. What are the other traits of an accomplice  does not have previous agreement or understanding; or  is not in conspiracy with the principal by direct participation. Conspirator Accomplice They know of and join in the criminal design They know and agree with the criminal design Conspirators know the criminal intention because they themselves have Accomplices come to know about it after the principals have reached the decision and only
  • 80. CRIMINAL LAW REVIEWER 80 decided upon such course of action then do they agree to cooperate in its execution Conspirators decide that a crime should be committed Accomplices merely assent to the plan and cooperate in its accomplishment Conspirators are the authors of a crime Accomplices are merely instruments who perform acts not essential to the perpetration of the offense. Requisites  That there be community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose;  That he cooperates in the execution of the offense by previous or simultaneous acts, with the intention of supplying material or moral aid in the execution of the crime in an efficacious way; and  That there be a relation between the acts done by the principal and those attributed to the person charged as accomplice. Principal by Cooperation Accomplice Cooperation is indispensable to the commission of the act Cooperation is not indispensable to the commission of the act C. Accessories 1. When accessories are not criminally liable: 1. When the felony committed is a light felony 2. When the accessory is related to the principal as i. spouse ii. ascendant, or descendant, or iii. brother or sister whether legitimate, or natural or adopted or iv. where the accessory is a relative by affinity within the same degree,  unless the accessory himself profited from the effects or proceeds of the crime or assisted the offender to profit therefrom. 2. When one cannot be an accessory:  he does not know the commission of the crime  he participated in the crime as a principal or an accomplice 3. When an accessory is exempt from criminal liability: (ASKED 4 TIMES IN THE BAR EXAMS) When the principal is his:  spouse,  ascendant  descendant  legitimate, natural or adopted brother, sister or relative by affinity within the same degree. Note: Even if only two of the principals guilty of murder are the brothers of the accessory and the others are not related to him, such accessory is exempt from criminal liability. 4. When an accessory is NOT exempt from criminal liability even if the principal is related to him:  If such accessory o profited from the effects of the crime, or o assisted the offender to profit by the effects of the crime 5. Other instances when one becomes an accessory: 1. accessory as a fence 2. acquiring the effects of piracy or brigandage 3. destroying the corpus delicti 4. harboring or concealing an offender 5. whether the accomplice and the accessory may be tried and convicted even before the principal is found guilty 1. Accessory as a fence: Presidential Decree No. 1612 (Anti-Fencing Law) One who knowingly profits or assists the principal to profit by the effects of robbery or theft (i.e. a fence) is not just an accessory to the crime, but principally liable for fencing The penalty is higher than that of a mere accessory to the crime of robbery or theft. Mere possession of any article of value which has been the subject of robbery or theft brings about the presumption of ―fencing‖. PD 1612 has, therefore, modified Art. 19 of the RPC. 2. Acquiring the effects of piracy or brigandage: Presidential Decree 532 (Anti-piracy and Highway Robbery law of 1974) If the crime was piracy or brigandage under PD 532, said act constitutes the crime of abetting piracy or abetting brigandage as the case may be, although the penalty is that of an accomplice, not just an accessory, to the piracy or the brigandage. Section 4 of PD 532 provides that any person who knowingly and in any manner acquires or receives property taken by such pirates or brigands or in any manner derives benefit therefrom, shall be considered as an accomplice of the principal offenders in accordance with the Rules prescribed by the Revised Penal Code. It shall be presumed that any person who does any acts provided in this section has performed them knowingly, unless the contrary is proven.
  • 81. CRIMINAL LAW REVIEWER 81 Although Republic Act 7659, in amending Article 122 of the RPC, incorporated therein the crime of piracy in Philippine territorial waters and thus correspondingly superseding PD 532 section 4 of said Decree, which punishes said acts as a crime of abetting piracy or brigandage, still stands as it has not been replaced or modified, and is not inconsistent with any provision of RA 7659. 3. Destroying the Corpus Delicti When the crime is robbery or theft, with respect to the third involvement of the accessory, do not overlook the purpose which must be to prevent discovery of the crime. The corpus delicti is not the body of the person who is killed.  Even if the corpse is not recovered, as long as that killing is established beyond reasonable doubt, criminal liability will arise.  If there is someone who destroys the corpus delicti to prevent discovery, he becomes an accessory. 4. Harboring or Concealing an Offender In the fourth form or manner of becoming an accessory, take note that the law distinguishes between:  a public officer harboring, concealing or assisting the principal to escape, and  a private citizen or civilian harboring, concealing or assisting the principal to escape. Public Officer Civilian The nature of the crime is immaterial The nature of the crime is material What is material is that he used his public function in assisting the escape For him to become an accessory, the principal must have committed the crime of treason, parricide, murder or attempt on the life of the Chief Executive Illustration: a. Crime committed is kidnapping for ransom of his employer. Principal was being chased by police. b. His aunt hid him in the ceiling of her house and she told the soldiers that her nephew had never visited her. When the soldiers left, the aunt even gave money to her nephew for the latter to go to the province. c. Is the aunt criminally liable? No. Article 20 does not include an aunt. However, this is not the reason. d. The principal must have committed either treason, parricide, murder, or attempt on the life of the Chief Executive, or that the principal is known to be habitually guilty of some other crime, e. for a person who is not a public officer and who assists an offender to escape or otherwise harbors, or conceals such offender, to be criminally liable. f. In this case, the crime committed was kidnapping.  In the preceding illustration, the aunt is not criminally liable under the Revised Penal Code because the crime is kidnapping, but she can be held liable under PD 1829. Revised Penal Code PD 1829 (Also Known as the Law Penalizing ―Obstruction of Justice‖) Specifies the crimes that should be committed in case a civilian aids in the escape No specification of the crime to be committed by the offender in order that criminal liability be incurred The offender is the principal or must be convicted of the crime charged The offender need not even be the principal or need not be convicted of the crime charged The one who harbored or concealed an offender is still an accessory An offender of any crime is no longer an accessory but is simply an offender without regard to the crime of the person assisted to escape 5. Whether the accomplice and the accessory may be tried and convicted even before the principal is found guilty There is an earlier Supreme Court ruling that the accessory and accomplice must be charged together with the principal; if the latter is acquitted, the accomplice and the accessory shall not be criminally liable, unless the acquittal is based on a defense which is personal only to the principal.  However, it is not always true that the accomplice and the accessory cannot be criminally liable without the principal being first convicted.  Under Rule 110 of the Revised Rules on Criminal Procedure, it is required that all those involved in the commission of the crime must be included in the information that may be filed. The liability of the accused will depend on the quantum of evidence adduced by the prosecution against the particular accused but the prosecution must initiate the proceedings against the principal. Even if the principal is convicted, if the evidence presented against a supposed accomplice or accessory does not meet the required proof beyond reasonable doubt, then said accused will be acquitted. So the criminal liability of an accomplice or accessory does not depend on the criminal liability of the principal but depends on the quantum of evidence.
  • 82. CRIMINAL LAW REVIEWER 82 But if the evidence shows that the act done does not constitute a crime and the principal is acquitted, then the supposed accomplice and accessory should also be acquitted. If there is no crime, then there is no criminal liability, whether principal, accomplice or accessory. Taer v. CA (1990): Accused received from his co-accused two stolen male carabaos. Conspiracy was not proven. Taer was held liable as an accessory in the crime of cattle- rustling under PD 533. Taer should have been liable as principal for violation of the Anti-Fencing Law since cattle-rustling is a form of theft or robbery of large cattle, except that he was not charged with fencing. Enrile v. Amin (1990): A person charged with rebellion should not be separately charged under PD 1829. The theory of absorption must not confine itself to common crimes but also to offenses punished under special laws which are perpetrated in furtherance of the political offense. Decree Penalizing Obstruction of Apprehension and Prosecution of Criminal Offenders (P.D. 1829) What is imposed:  Prision correccional in its maximum period, or  Fine ranging from PhP 1,000 – 6,000, or  Both Upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases through the acts enumerated in Sec. 1 i. Punishable acts (Sec. 1) a) Preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats; b) Altering, destroying, suppressing or concealing any paper, record, document, or object with intent to impair its veracity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases; c) Harboring or concealing, or facilitating the escape of, any persons he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction; d) Publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes; e) Delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscals‘ offices, in Tanodbayan, or in the courts; f) Making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in criminal cases; g) Soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discontinuing, or impeding the prosecution of a criminal offender; h) Threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of, or in official proceedings in criminal cases; i) Giving a false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or the court. ii. Compare with Article 20, RPC (accessories exempt from criminal liability) Art. 20. Accessories who are exempt from criminal liability – The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of paragraph 1 of the next preceding article. Ground for exemption under Art. 20 Based on ties of blood and the preservation of the cleanliness of one‘s name, which compels one to conceal crimes committed by relatives so near as those mentioned. Accessory is not exempt from criminal liability even if the principal is related to him if he a) profited by the effects of the crime, or b) assisted the offender to profit by the effect of the crime. The punishable acts in PD 1829, compared to RPC Art. 20, are prompted by a detestable greed, not by affection.
  • 83. CRIMINAL LAW REVIEWER 83 CHAPTER V. PENALTIES A. GENERAL PRINCIPLES B. PENALTIES WHICH MAY BE IMPOSED C. SPECIFIC PRINCIPAL AND ACCESSORY PENALTIES D. ACCESSORY PENALTIES E. MEASURES NOT CONSIDERED PENALTY F. APPLICATION AND COMPUTATION OF PENALTIES G. SPECIAL RULES FOR CERTAIN SITUATIONS H. EXECUTION AND SERVICE OF PENALTIES. PENALTY is the suffering that is inflicted by the State for the transgression of a law. Different Juridical Conditions of Penalty: 1. Must be PRODUCTIVE OF SUFFERING, without affecting the integrity of the human personality. 2. Must be COMMENSURATE to the offense – different crimes must be punished with different penalties. 3. Must be PERSONAL – no one should be punished for the crime of another. 4. Must be LEGAL – it is the consequence of a judgment according to law. 5. Must be CERTAIN – no one may escape its effects. 6. Must be EQUAL for all. 7. Must be CORRECTIONAL. Theories justifying penalty: 1. PREVENTION – to suppress danger to the State 2. SELF-DEFENSE – to protect the society from the threat and wrong inflicted by the criminal. 3. REFORMATION – to correct and reform the offender. 4. EXEMPLARITY – to serve as an example to deter others from committing crimes. 5. JUSTICE – for retributive justice, a vindication of absolute right and moral law violated by the criminal. A. General Principles Art. 21. Penalties that may be imposed. — No felony shall be punishable by any penalty not prescribed by law prior to its commission. This article prohibits the Government from punishing any person for any felony with any penalty which has not been prescribed by the law. It has no application to any of the provisions of the RPC for the reason that for every felony defined in the Code, a penalty has been prescribed. REASON: An act or omission cannot be punished by the State if at the time it was committed there was no law prohibiting it, because a law cannot be rationally obeyed unless it is first shown, and a man cannot be expected to obey an order that has not been given. Act Prohibiting the Imposition of Death Penalty in the Philippines (R.A. 9346) RA 9346 or ―An Act Prohibiting the Imposition of Death Penalty in the Philippines‖ Expressly repealed RA 8177 or ―Act Designating Death by Lethal Injection‖ and RA 7659 or ―Death Penalty Law‖ RA 9346 repealed all the other laws imposing death penalty.  Section 2 states that: ―In lieu of the death penalty, the following shall be imposed: a. the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or b. the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.‖ People v. Bon (2006): Yet in truth, there is no material difference between ―imposition‖ and ―application,‖ for both terms embody the operation in law of the death penalty. Since Article 71 denominates ―death‖ as an element in the graduated scale of penalties, there is no question that the operation of Article 71 involves the actual application of the death penalty as a means of determining the extent which a person‘s liberty is to be deprived. Since Rep. Act No. 9346 unequivocally bars the application of the death penalty, as well as expressly repeals all such statutory provisions requiring the application of the death penalty, such effect necessarily extends to its relevance to the graduated scale of penalties under Article 71. The court cannot find basis to conclude that Rep. Act No. 9346 intended to retain the operative effects of the death penalty in the graduation of the other penalties in our penal laws. Munoz cannot enjoin us to adopt such conclusion. Rep. Act No. 9346 is not swaddled in the same restraints appreciated by Muñoz on Section 19(1), Article III. The very Congress empowered by the Constitution to reinstate the imposition of the death penalty once thought it best to do so, through Rep. Act No. 7650. Within the same realm of constitutional discretion, Congress has reversed itself. It must be asserted that today, the legal status of the suppression of the death penalty in the Philippines has never been more secure than at any time in our political history as a nation.
  • 84. CRIMINAL LAW REVIEWER 84 1. Purposes Purpose of penalty under the RPC: 1. RETRIBUTION OR EXPIATION – the penalty is commensurate with the gravity of the offense. It permits society to exact proportionate revenge, and the offender to atone for his wrongs. 2. CORRECTION OR REFORMATION – as shown by the rules which regulate the execution of the penalties consisting in deprivation of liberty. 3. SOCIAL DEFENSE – shown by its inflexible severity to recidivist and habitual delinquents. 2. Classification 1. Major Classification (Asked 3 times in the Bar Exams) a. PRINCIPAL PENALTIES – those expressly imposed by the court in the judgment of conviction. b. ACCESSORY PENALTIES – those that are deemed included in the imposition of the principal penalties. c. SUBSIDIARY PENALTIES – those imposed in lieu of principal penalties, i.e., imprisonment in case of inability to pay the fine. Note: Public censure is a penalty,  Thus, it is not proper in acquittal.  However, the Court in acquitting the accused may criticize his acts or conduct. Penalties that are either principal or accessory:  Perpetual or temporary absolute disqualification,  Perpetual or temporary special disqualification, and  Suspension o May be principal or accessory penalties, because they are formed in the 2 general classes. (Asked 3 times in the Bar Exams) 2. Other Classifications of Penalties a. According to their divisibility: (1) Divisible (a) those that have fixed duration (b) divisible into three periods. (2) Indivisible (a) those which have no fixed duration: (b) Death (c) Reclusion perpetua (d) Perpetual absolute or special disqualification (e) Public censure b. According to subject-matter (1) Corporal (death) (2) Deprivation of freedom (reclusion, prision, arresto) (3) Restriction of freedom (destierro) (4) Deprivation of rights (disqualification and suspension) (5) Pecuniary (fine) c. According to their gravity (1) Capital (2) Afflictive (3) Correctional (4) Light 3. Duration and Effect Art. 22. Retroactive effect of penal laws. — Penal Laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same. This article states that Penal Laws shall only have retroactive effect if it favors persons guilty of felonies, who are not considered habitual criminals as defined in Article 62. Art. 23. Effect of pardon by the offended party. — A pardon of the offended party does not extinguish criminal action except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver. This article states the extent of a pardon made by the offended party. Under this article, a pardon does not extinguish the criminal liability of an offender except for cases under Article 344 (Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness). But the civil liability with regard to the interest of the injured party is extinguished. Art. 25. Penalties which may be imposed. The penalties which may be imposed according to this Code, and their different classes, are those included in the following: B. Penalties which may be imposed 1. Scale of Principal Penalties a. Capital punishment: (D) (1) Death. b. Afflictive penalties: (RP, RT, PAD, TAD, PSD, TSD, PM) (1) Reclusion perpetua, (2) Reclusion temporal, (3) Perpetual or temporary absolute disqualification, (4) Perpetual or temporary special disqualification, (5) Prision mayor. c. Correctional penalties: (PC, AM, S, Des) (1) Prision correccional, (2) Arresto mayor, (3) Suspension,
  • 85. CRIMINAL LAW REVIEWER 85 (4) Destierro. d. Light penalties: (Am, Pc) (1) Arresto menor, (2) Public censure. e. Penalties common to the three preceding classes: (F, Bond) (1) Fine, and (2) Bond to keep the peace. 2. Scale of Accessory Penalties (PAD, TAD, PSD, TSD, S, CI, I, F, Pay) a. Perpetual or temporary absolute disqualification, b. Perpetual or temporary special disqualification, c. Suspension from public office, the right to vote and be voted for, the profession or calling. d. Civil interdiction, e. Indemnification, f. Forfeiture or confiscation of instruments and proceeds of the offense, g. Payment of costs LIFE IMPRISONMENT RECLUSION PERPETUA Imposed for serious offenses penalized by special laws Prescribed under the RPC Does not carry with it accessory penalties Carries with it accessory penalties Does not appear to have any definite extent or duration Entails imprisonment for at least 30 years after which the convict becomes eligible for pardon although the maximum period shall in no case exceed 40 years The following table also contains DISQUALIFICATION as an afflictive penalty, because its different forms can also be imposed as a principal although it is primarily categorized as an accessory penalty. PENALTY DURATION EFFECTS ACCESSORIES Death (REPEALED) Indivisible Death, when not executed due to pardon or commutation (REPEALED) (1) PAD (2) Civil interdiction 30 yrs from sentence Reclusion perpetua 20 years & 1 day to 40 years (Indivisible) (1) PAD (2) Civil interdiction for life Perpetual absolute disqualification (PAD) For life (1) Deprivation of public office, even if by election (2) Deprivation of right to vote & be voted for (3) Disqualification from public office held (4) Loss of retirement rights Perpetual special disqualification (PSD) For life (1) Deprivation of office, employment, profession, or calling affected (2) Disqualification from similar offices or employments Reclusion temporal 12 years & 1 day to 20 years (1) PAD (2) Civil interdiction for duration of sentence Prision mayor 6 years & 1 day to 12 years (1) TAD (2) PSD of suffrage Temporary absolute disqualification (TAD) 6 years & 1 day to 12 years (1) Deprivation of public office, even if by election (2) Deprivation of right to vote & be voted for during sentence (3) Disqualification from public office held during sentence (4) Loss of retirement rights Temporary special disqualification (TSD) 6 years & 1 day to 12 years (1) Deprivation of office, employment, profession, or calling affected (2) Disqualification from
  • 86. CRIMINAL LAW REVIEWER 86 PENALTY DURATION EFFECTS ACCESSORIES similar offices or employments C. Specific Principal And Accessory Penalties 1. Afflictive penalties Art. 27. a. Reclusion perpetua. Any person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall be considered by the Chief Executive as unworthy of pardon. b. Reclusion temporal. The penalty of reclusion temporal shall be from twelve years and one day to twenty years. c. Prision mayor and temporary disqualification. The duration of the penalties of prision mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case its duration shall be that of the principal penalty. Art. 41. Reclusion perpetua and reclusion temporal; Their accessory penalties: The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. Art. 42. Prision mayor; Its accessory penalties: The penalty of prision mayor, shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. 1. Reclusion Perpetua Duration: 20 years and 1 day to 40 years Accessory Penalties: (1) Civil interdiction for life or during the period of the sentence as the case may be. (2) Perpetual Absolute Disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. People v. Gatward (1997): Held: As amended by RA 7659, the penalty of reclusion perpetua is now accorded a defined duration ranging from 20 years and 1 day to 40 years. The Court held that in spite of the amendment putting the duration of RP, it should remain as an indivisible penalty since there was never intent on the part of Congress to reclassify it into a divisible penalty. The maximum duration of reclusion perpetua is not and has never been 30 years which is merely the number of years which the convict must serve in order to be eligible for pardon or for the application of the 3-fold rule (infra). People v. Ramirez (2001): The SC disagrees with the trial court in sentencing appellant "to suffer imprisonment of forty (40) years reclusion perpetua." There was no justification or need for the trial court to specify the length of imprisonment, because reclusion perpetua is an indivisible penalty. The significance of this fundamental principle was laid down by the Court in People v. Diquit. "Since reclusion perpetua is an indivisible penalty, it has no minimum, medium or maximum periods. It is imposed in its entirety regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime. (Art. 63, Revised Penal Code) Reclusion Perpetua is imprisonment for life but the person sentenced to suffer it shall be pardoned after undergoing the penalty for thirty (30) years, unless by reason of his conduct or some other serious cause, he shall be considered by the Chief Executive as unworthy of pardon (Art. 27, Revised Penal Code)." Distinguished from Life Imprisonment (ASKED 5 TIMES IN THE BAR EXAMS) People v. Ballabare (1996): The trial court erred in imposing the penalty of life imprisonment for violation of PD 1866. The crime of illegal possession of firearm in its aggravated form is punished by the penalty of death. Since the offense was committed on Sep. 16, 1990, at a time when the imposition of the death penalty was prohibited, the penalty next lower in degree
  • 87. CRIMINAL LAW REVIEWER 87 which is reclusion perpetua should be imposed. This is not equivalent to life imprisonment. While life imprisonment may appear to be the English translation of reclusion perpetua, in reality, it goes deeper than that. 2. Reclusion Temporal Duration: 12 years and 1 day to 20 years Accessory Penalties: (1) Civil interdiction for life or during the period of the sentence as the case may be. (2) Perpetual Absolute Disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. 3. Prision mayor Duration: 6 years and 1 day to 12 years Accessory Penalties: (1) Temporary Absolute Disqualification (2) Perpetual Special Disqualification from the right to suffrage which the offender shall suffer although pardoned as to the principal penalty unless the same shall have been expressly remitted in the pardon. 1. Correctional penalties Art. 27 (4). Prision correccional, suspension, and destierro. 1) The duration of the penalties of prision correccional, suspension and destierro 2) shall be from six months and one day to six years, 3) except when suspension is imposed as an accessory penalty, 4) in which case, its duration shall be that of the principal penalty. Arresto mayor. The duration of the penalty of arresto mayor shall be from one month and one day to six months. Art. 39. Subsidiary penalty. If the convict has no property with which to meet the fine mentioned in the paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules: 1) If the principal penalty imposed be prision correccional or arresto and fine,  he shall remain under confinement until his fine referred to in the preceding paragraph is satisfied,  but his subsidiary imprisonment shall not exceed one-third of the term of the sentence,  and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. 2) When the principal penalty imposed be only a fine,  the subsidiary imprisonment shall not exceed six months,  if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony. 3) When the principal imposed is higher than prision correccional,  no subsidiary imprisonment shall be imposed upon the culprit. 4) If the principal penalty imposed is not to be executed by confinement in a penal institution,  but such penalty is of fixed duration,  the convict, during the period of time established in the preceding rules,  shall continue to suffer the same deprivations as those of which the principal penalty consists. 5) The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him,  from the fine in case his financial circumstances should improve. (As amended by RA 5465, April 21, 1969). (Asked 2 times in the Bar Exams) Art. 43. Prision correccional; Its accessory penalties. The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in the article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. Art. 44. Arresto; Its accessory penalties. The penalty of arresto shall carry with it that of suspension of the right to hold office and the right of suffrage during the term of the sentence. 1. Prision Correccional Duration: 6 months and 1 day to 6 years Accessory Penalties: (1) Suspension from public office (2) Suspension from the right to follow a profession or calling (3) Perpetual Special Disqualification for the right of suffrage, if the duration of the imprisonment shall exceed 18 months 2. Arresto Mayor Duration: 1 month and 1 day to 6 months Accessory Penalties:
  • 88. CRIMINAL LAW REVIEWER 88 (1) Suspension of right to hold office (2) Suspension of the right of suffrage during the term of the sentence. PENALTY DURATION EFFECTS ACCESSORIES Prision correccional 6 months & 1 day to 6 years (1) Suspension from public office (2) Suspension from profession or calling (3) PSD of suffrage, if the duration of imprisonment exceeds 18 mos. Suspension 6 months & 1 day to 6 years (1) Public office (2) Profession or calling (3) Suffrage Destierro 6 months & 1 day to 6 years Prohibition to enter w/in 25- 250 km radius from the designated place Arresto mayor 1 month & 1 day to 6 months (1) Suspension of right to hold office (2) Suspension of the right of suffrage
  • 89. CRIMINAL LAW REVIEWER 89 3. Light penalties Art. 27 (6). Arresto menor. The duration of the penalty of arresto menor shall be from one day to thirty days. Art. 39. Subsidiary penalty. If the convict has no property with which to meet the fine mentioned in the paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules: 6) If the principal penalty imposed be prision correccional or arresto and fine,  he shall remain under confinement until his fine referred to in the preceding paragraph is satisfied,  but his subsidiary imprisonment shall not exceed one-third of the term of the sentence,  and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. 7) When the principal penalty imposed be only a fine,  the subsidiary imprisonment shall not exceed six months,  if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony. 8) When the principal imposed is higher than prision correccional,  no subsidiary imprisonment shall be imposed upon the culprit. 9) If the principal penalty imposed is not to be executed by confinement in a penal institution,  but such penalty is of fixed duration,  the convict, during the period of time established in the preceding rules,  shall continue to suffer the same deprivations as those of which the principal penalty consists. 10) The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him,  from the fine in case his financial circumstances should improve. (As amended by RA 5465, April 21, 1969). Art. 44. Arresto; Its accessory penalties. The penalty of arresto shall carry with it that of suspension of the right too hold office and the right of suffrage during the term of the sentence. 1. Arresto Menor Duration: 1 day to 30 days Accessory Penalties: (1) Suspension of right to hold office (2) Suspension of the right of suffrage during the term of the sentence. 2. Public Censure Censure, being a penalty is not proper in acquittal. 4. Penalties common to afflictive, correctional, and light penalties 1. Fine Art. 26. When afflictive, correctional, or light penalty. 1) A fine, whether imposed as a single or as an alternative penalty, 2) shall be considered an afflictive penalty, if it exceeds 6,000 pesos; 3) a correctional penalty, if it does not exceed 6,000 pesos but is not less than 200 pesos; 4) and a light penalty if it less than 200 pesos. This article merely classifies fine and has nothing to do with the definition of light felony. Fine is:  Afflictive –more thanP6,000  Correctional – P200 to P6,000  Light Penalty – less than P200 Art. 66. Imposition of fines. — In imposing fines the courts may fix any amount within the limits established by law; in fixing the amount in each case attention shall be given, not only to the mitigating and aggravating circumstances, but more particularly to the wealth or means of the culprit. The court can fix any amount of the fine within the limits established by law. The court must consider:  The mitigating and aggravating circumstances; and  More particularly, the wealth or means of the culprit. When the law does not fix the minimum of the fine,  the determination of the amount of the fine to be imposed upon the culprit  is left to the sound discretion of the court,  provided it shall not exceed the maximum authorized by law. Fines are not divided into 3 equal portions. 2. Bond to Keep the Peace Art. 35. Effects of bond to keep the peace. — It shall be the duty of any person sentenced to give bond to keep the peace, to present two sufficient sureties who shall undertake that such person will not commit the offense sought to be prevented,
  • 90. CRIMINAL LAW REVIEWER 90 and that in case such offense be committed they will pay the amount determined by the court in the judgment, or otherwise to deposit such amount in the office of the clerk of the court to guarantee said undertaking. The court shall determine, according to its discretion, the period of duration of the bond. Should the person sentenced fail to give the bond as required he shall be detained for a period which shall in no case exceed six months, is he shall have been prosecuted for a grave or less grave felony, and shall not exceed thirty days, if for a light felony. 2 WAYS OF GIVING BOND: a. The offender must present  2 sufficient sureties who shall undertake that o the offender will not commit the offense sought to be prevented, o and that in case such offense be committed  they will pay the amount determined by the court; b. The offender must  deposit such amount with the clerk of court to guarantee said undertaking; The court shall determine the period of duration of the bond. The offender may be detained, if he cannot give the bond,  for a period not to exceed 6 months if prosecuted for grave or less grave felony, or  for a period not to exceed 30 days, if for a light felony. Bond to keep the peace is different from bail bond which is posted for the provisional release of a person arrested for or accused of a crime. PENALTY DURATION ACCESSORIES Arresto menor 1 day to 30 days Suspension of right to hold office and right of suffrage Public censure (Penalties Common to All Three Types) PENALTY DURATION ACCESSORIES Fine Bond to keep the peace As determined by the court D. Accessory penalties 1. Perpetual or temporary absolute disqualification, 2. Perpetual or temporary special disqualification, 3. Suspension from public office, the right to vote and be voted for, the profession or calling. 4. Civil interdiction, 5. Indemnification/ Forfeiture or confiscation of instruments and proceeds of the offense, 6. Payment of costs. 1. Perpetual or Temporary Absolute Disqualification Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — 1) The deprivation of the public offices and employments which the offender may have held even if conferred by popular election. 2) The deprivation of the right to vote in any election for any popular office or to be elected to such office. 3) The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.  In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence. 4) The loss of all rights to retirement pay or other pension for any office formerly held. Effects: (1) Deprivation of any public office or employment of offender; (2) Deprivation of the right to vote in any election or to be voted upon; (3) Loss of rights to retirement pay or pension Note: Perpetual absolute disqualification is effective during the lifetime of the convict and even after the service of the sentence. Temporary absolute disqualification lasts during the term of the sentence except (1) deprivation of the public office or employment; and (2) loss of all rights to retirement pay or other pension for any office formerly held. (See Art. 30, par. 3). Art. 32. Effect of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. (1) The perpetual or temporary special disqualification for the exercise of the right of suffrage (2) shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, (3) of the right to vote in any popular election for any public office or to be elected to such office. (4) Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification.
  • 91. CRIMINAL LAW REVIEWER 91 Art. 33. Effects of the penalties of suspension from any public office, profession or calling, or the right of suffrage. The suspension from public office, profession or calling, and the exercise of the right of suffrage shall disqualify the offender from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence. The person suspended from holding public office shall not hold another having similar functions during the period of his suspension. Art. 34. Civil interdiction. Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed. Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed. (Asked once in the Bar Exams) 2. Perpetual or Temporary Special Disqualification Art. 31. Effect of the penalties of perpetual or temporary special disqualification. (1) The deprivation of the office, employment, profession or calling affected; (2) The disqualification for holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification. Effects: For public office, profession or calling: (1) Deprivation of the office, employment, profession or calling affected; (2) Disqualification for holding similar offices or employments during the period of disqualification. Effects: For the exercise of right to suffrage: (1) Deprivation of the right to vote or to be elected in an office; (2) Cannot hold any public office during the period of disqualification. (Art. 31). The penalty for disqualification if imposed as an accessory penalty is imposed for PROTECTION and NOT for the withholding of a privilege. Note: If temporary disqualification or suspension is imposed as an accessory penalty, the duration is the same as that of the principal penalty. 3. Suspension from Public Office, the Right to Vote and Be Voted for, the Right to Practice a Profession or Calling Effects: (1) Disqualification from holding such office or the exercise of such profession or right of suffrage during the term of the sentence; (2) Cannot hold another office having similar functions during the period of suspension. (Art. 32). 4. Civil Interdiction Effects: Deprivation of the following rights: (1) Parental authority (2) Guardianship over the ward (3) Marital authority (4) Right to manage property and to dispose of the same by acts inter vivos. (Note: The convict can still dispose his property mortis causa). Civil interdiction is an accessory penalty to the following principal penalties: (1) Death if commuted to life imprisonment; (2) Reclusion perpetua (3) Reclusion temporal 5. Indemnification or Confiscation of Instruments or Proceeds of the Offense  This is included in every penalty for the commission of the crime.  The confiscation is in favor of the government.  Property of a third person not liable for the offense is not subject to confiscation.  If the trial court did not order any confiscation of the process of the crime, the government cannot appeal from the confiscation as that would increase the penalty already imposed. 6. Payment of Costs Includes: (1) Fees, and (2) Indemnities, in the course of judicial proceedings.  Costs may be fixed amounts already determined by law or regulations or amounts subject to a schedule.
  • 92. CRIMINAL LAW REVIEWER 92  If the accused is convicted; costs may be charged against him.  If he is acquitted, costs are de officio, meaning each party bears his own expense.  No costs shall be allowed against the Republic of the Philippines. (Rule 142, Sec. 1).  Whether costs should be assessed against the accused lie within the discretion of the court. ACCESSORY PENALTY EFFECTS Perpetual or Temporary Absolute Disqualification Deprivation of any public office or employment of offender; Deprivation of the right to vote in any election or to be voted upon; Loss of rights to retirement pay or pension Perpetual or Temporary Special Disqualification For public office, profession or calling:  Deprivation of the office, employment, profession or calling affected;  Disqualification for holding similar offices or employments during the period of disqualification; For the exercise of right to suffrage:  Deprivation of the right to vote or to be elected in an office;  Cannot hold any public office during the period of disqualification Suspension from Public Office, the Right to Vote and Be Voted for, the Right to Practice a Profession or Calling Disqualification from holding such office or the exercise of such profession or right of suffrage during the term of the sentence; Cannot hold another office having similar functions during the period of suspension. Civil Interdiction Deprivation of the following rights:  Parental authority  Guardianship over the ward  Marital authority  Right to manage property and to dispose of the same by acts inter vivos Indemnification or Confiscation of Instruments or Proceeds of the Offense Forfeiture in favor of the Government of the proceeds of the crime and the instruments or tools with which it was committed Payment of Costs If the accused be convicted, the costs may be charged against him If he be acquitted, costs are de officio, i.e., each party will bear his/her own expense E. Measures not considered penalty Art. 24. Measures of prevention or safety which are nor considered penalties. The following shall not be considered as penalties: (1) The arrest and temporary detention of accused persons, as well as their detention by reason of insanity or imbecility, or illness requiring their confinement in a hospital. (2) The commitment of a minor to any of the institutions mentioned in Article 80 and for the purposes specified therein. (3) Suspension from the employment of public office during the trial or in order to institute proceedings. (4) Fines and other corrective measures which, in the exercise of their administrative disciplinary powers, superior officials may impose upon their subordinates. (5) Deprivation of rights and the reparations which the civil laws may establish in penal form. Measures not considered penalties: (1) Preventive detention (2) Detention for medical causes (3) Rehabilitation of minors (4) Preventive suspension from public office (5) Administrative fines and penalties (6) Civil law deprivation of rights and reparations They are not penalties because they are not imposed as a result of judicial proceedings. Those mentioned in par. 3 and 4 are merely preventive measures before conviction of offenders. The commitment of a minor mentioned in par. 2 is not a penalty because it is not imposed by the court in a judgment of conviction. The imposition of the sentence in such case is suspended. The succeeding provisions are some examples of deprivation of rights established in penal form: Family Code, Art. 228. Parental authority terminates permanently: (1) Upon the death of the parents; (2) Upon the death of the child; or (3) Upon emancipation of the child. (327a) Family Code, Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates:
  • 93. CRIMINAL LAW REVIEWER 93 (1) Upon adoption of the child; (2) Upon appointment of a general guardian; (3) Upon judicial declaration of abandonment of the child in a case filed for the purpose; (4) Upon final judgment of a competent court divesting the party concerned of parental authority; or (5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a) F. Application 1. Indeterminate Sentence Law 2. Three-fold Rule 3. Subsidiary Imprisonment General Rules Art. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. — Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of legislation. In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense. In case of excessive penalties, the court must still impose the penalty but it shall recommend reduction, commutation, or other actions to the Chief Executive. Art. 21. Penalties that may be imposed. — No felony shall be punishable by any penalty not prescribed by law prior to its commission. Nulla poena sine lege.‖ This article prohibits the Government from imposing punishment to any person for a felony with any penalty which has not been prescribed by the law. In addition, penalties must be individual, i.e., not shared, and definite, e.g., imprisonment, fine, imprisonment and fine, imprisonment or fine; but not imprisonment and/or fine. Art. 28. Computation of penalties. — If the offender shall be in prison, the term of the duration of the temporary penalties shall be computed from the day on which the judgment of conviction shall have become final. If the offender be not in prison, the term of the duration of the penalty consisting of deprivation of liberty shall be computed from the day that the offender is placed at the disposal of the judicial authorities for the enforcement of the penalty. The duration of the other penalties shall be computed only from the day on which the defendant commences to serve his sentence. RULES ON THE COMPUTATION OF PENALTIES: (1) WHEN THE OFFENDER IS IN PRISON – the duration of temporary penalties is from the day on which the judgment of conviction becomes final. (2) WHEN THE OFFENDER IS NOT IN PRISON – the duration of penalty consisting in deprivation of liberty, is from the day that the offender is placed at the disposal of judicial authorities for the enforcement of the penalty. (3) THE DURATION OF OTHER PENALTIES – the duration is from the day on which the offender commences to serve his sentence  Examples of temporary penalties: (1) Temporary absolute disqualification (2) Temporary special disqualification (3) Suspension If offender is under detention, as when he is undergoing preventive imprisonment, Rule No. 1 applies. If not under detention, because the offender has been released on bail, Rule No. 3 applies.  Examples of penalties consisting in deprivation of liberty: (1) Imprisonment (2) Destierro  When the offender is not in prison, Rule No. 2 applies.  If the offender is undergoing preventive imprisonment, Rule No. 3 applies but the offender is entitled to a deduction of full time or 4/5 of the time of his detention. Art. 29. Period of preventive imprisonment deducted from term of imprisonment. Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases: a. When they are recidivists or have been convicted previously twice or more times of any crime; and
  • 94. CRIMINAL LAW REVIEWER 94 b. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. (As amended by Republic Act 6127, June 17, 1970). Whenever an accused has undergone preventive imprisonment  for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced  and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by E.O. No. 214, July 10, 1988). The accused undergoes preventive imprisonment when the offense charged is nonbailable, or even if bailable, he cannot furnish the required bail. The convict is to be released immediately if the penalty imposed after trial is less than the full time or four-fifths of the time of the preventive imprisonment. The accused shall be released immediately whenever he has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment for the offense charged. (Asked 4 times in the Bar Exams) 1. Indeterminate Sentence Law (R.A. 4013, as amended) The Indeterminate Sentence is composed of: (1) A MAXIMUM taken from the penalty imposable under the penal code (considering attendant circumstances) (2) A MINIMUM taken from the penalty next lower to that fixed in the code. Purpose of the law: to uplift and redeem valuable human material and prevent unnecessary and excessive deprivation of liberty and economic usefulness.  It is necessary to consider the criminal first as an individual, and second as a member of the society.  The law is intended to favor the defendant, particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental and moral record as a prisoner, to be determined by the Board of Indeterminate Sentence. The settled practice is to give the accused the benefit of the law even in crimes punishable with death or life imprisonment provided the resulting penalty, after considering the attending circumstances, is reclusion temporal or less. ISL does not apply to destierro. ISL is expressly granted to those who are sentenced to imprisonment exceeding 1 year. a. Application on the imposed sentence PROCEDURE FOR DETERMING THE MAXIMUM AND MINIMUM SENTENCE (1) It consists of a maximum and a minimum instead of a single fixed penalty. (2) Prisoner must serve the minimum before he is eligible for parole. (3) The period between the minimum and maximum is indeterminate in the sense that the prisoner may be exempted from serving said indeterminate period in whole or in part. (4) The maximum is determined in any case punishable under the RPC in accordance with the rules and provisions of said code exactly as if the ISL had never been enacted. (5) Apply first the effect of privileged mitigating circumstances then consider the effects of aggravating and ordinary mitigating circumstances. (6) The minimum depends upon the court‘s discretion with the limitation that it must be within the range of the penalty next lower in degree to that prescribed by the Code for the offense committed. Note: A minor who escaped from confinement in the reformatory is entitled to the benefits of the ISL because his confinement is not considered imprisonment. b. Coverage The law does not apply to certain offenders: (1) Persons convicted of offense punished with death penalty or life imprisonment (or reclusion perpetua). (2) Those convicted of treason, conspiracy or proposal to commit treason. (3) Those convicted of misprision of treason, rebellion, sedition or espionage. (4) Those convicted of piracy. (5) Those who are habitual delinquents (but applies to recidivists). (6) Those who shall have escaped from confinement or evaded service of sentence. (7) Those who violated the terms of conditional pardon granted to them by the Chief Executive. (8) Those whose maximum term of imprisonment does not exceed one year. (9) Those who, upon the approval of the law, had been sentenced by final judgment.
  • 95. CRIMINAL LAW REVIEWER 95 (10) Those sentenced to the penalty of destierro or suspension. Art. 64. Rules for the application of penalties which contain three periods. In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances: a) When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. a) When only a mitigating circumstance is present in the commission of the act, they shall impose the penalty in its minimum period. b) When an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period. c) When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight. d) When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall: i) impose the penalty next lower to that prescribed by law, ii) in the period that it may deem applicable, iii) according to the number and nature of such circumstances. e) Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law, in its maximum period. f) Within the limits of each period, the court shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater and lesser extent of the evil produced by the crime. De la Cruz v. CA (1996): In as much as the amount of P715k is P693k more than the abovementioned benchmark of P22k, then adding one year for each additional P10k, the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor minimum would be increased by 69 years, as computed by the trial court. But the law categorically declares that the maximum penalty then shall not exceed 20 years of reclusion temporal. Under the ISL, the minimum term of the indeterminate penalt should be within the range of the penalty next lower in degree to that prescribed b the Code for the offense committed, which is prision correccional. People v. Saley (supra): Under the Indeterminate Sentence Law, a) the maximum term of the penalty shall be "that which, in view of the attending circumstances, could be properly imposed" under the Revised Penal Code, b) and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months. People v. Campuhan (supra): The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of
  • 96. CRIMINAL LAW REVIEWER 96 reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods. (ASKED 15 TIMES IN THE BAR EXAMS) c. Conditions of parole Section 6: Duty of the prisoner released under this Code: Report personally to such government officials or other parole officers appointed by the Board for a period of surveillance equivalent to the remaining portion of the maximum sentence imposed upon him or until final release by the Board. If it is shown that he is a law-abiding citizen and did not violate any laws of the country, the Board may issue a final certificate of release which will entitle him to final release and discharge. Section 8: Violations of the conditions of the parole: If he/she violates any of the conditions of the parole, the Board may issue his warrant of arrest. If captured/arrested, he shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed unless a new parole was granted. 2. The Three-fold rule Art. 70. Successive service of sentence. When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit otherwise, the following rules shall be observed: In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out. For the purpose of applying the provisions of the next preceding paragraph the respective severity of the penalties shall be determined in accordance with the following scale: (1) Death, (2) Reclusion perpetua, (3) Reclusion temporal, (4) Prision mayor, (5) Prision correccional, (6) Arresto mayor, (7) Arresto menor, (8) Destierro, (9) Perpetual absolute disqualification, (10) Temporal absolute disqualification. (11) Suspension from public office, the right to vote and be voted for, the right to follow a profession or calling, and (12) Public censure Notwithstanding the provisions of the rule next preceding, the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period. Such maximum period shall in no case exceed forty years. In applying the provisions of this rule the duration of perpetual penalties shall be computed at thirty years. (As amended). Outline of the provisions of this Article: (1) When the culprit has to serve 2 or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. (2) Otherwise, the order of their respective severity shall be followed. The respective severity of the penalties is as follows: (1) Death (repealed) (2) Reclusion perpetua (3) Reclusion temporal (4) Prision mayor (5) Prision correccional (6) Arresto mayor (7) Arresto menor (8) Destierro (9) Perpetual absolute disqualification (10) Temporary absolute disqualification (11) Suspension from public office, the right to vote, and be voted for, the right to follow profession or calling, and (12) Public censure The penalties which can be simultaneously served are: (1) Perpetual absolute disqualification (2) Perpetual special disqualification (3) Temporary absolute disqualification (4) Temporary special disqualification (5) Suspension (6) Destierro (7) Public Censure (8) Fine and Bond to keep the peace (9) Civil interdiction (10) Confiscation and payment of costs  The above penalties, except destierro, can be served simultaneously with imprisonment.  Penalties consisting in deprivation of liberty cannot be served simultaneously by reason of the nature of such penalties. Three-fold Rule:
  • 97. CRIMINAL LAW REVIEWER 97 The maximum duration of the convict‘s sentence shall not be more than three times the length of time corresponding to the most severe of the penalties imposed upon him. The phrase ―the most severe of the penalties‖ includes equal penalties. The three-fold rule applies only when the convict has to serve at least four sentences. All the penalties, even if by different courts at different times, cannot exceed three-fold the most severe. The Rules of Court specifically provide that any information must not charge more than one offense. Necessarily, the various offense punished with different penalties must be charged under different informations which may be filed in the same court or in different courts, at the same time or at different times. Subsidiary imprisonment forms part of the penalty. Indemnity is a penalty. Court must impose all the penalties for all the crimes of which the accused is found guilty, but in the service of the same, they shall not exceed three times the most severe and shall not exceed 40 years. Mejorada v. Sandiganbayan (1987): The petitioner was convicted of violating Section 3(E) of RA No. 3019 aka the Anti-Graft and Corrupt Practices Act. One of the issues raised by the petitioner concerns the penalty imposed by the Sandiganbayan which totals 56 years and 8 days of imprisonment. He impugns this as contrary to the three-fold rule and insists that the duration of the aggregate penalties should not exceed 40 years. Held: Petitioner is mistaken in his application of the 3-fold rule as set forth in Art. 70 of the RPC. This article is to be taken into account not in the imposition of the penalty but in connection with the service of the sentence imposed. Art. 70 speaks of ―service‖ of sentence, ―duration‖ of penalty and penalty ―to be inflicted‖. Nowhere in the article is anything mentioned about the ―imposition of penalty‖. It merely provides that the prisoner cannot be made to serve more than three times the most severe of these penalties the maximum which is 40 years. (Asked once in the Bar Exams) Where the Penalty Is Not Composed of 3 Periods Art. 65. Rule in cases in which the penalty is not composed of three periods. In cases in which the penalty prescribed by law is not composed of three periods, the courts shall apply the rules contained in the foregoing articles, dividing into three equal portions of time included in the penalty prescribed, and forming one period of each of the three portions. Meaning of the Rule a. Compute and determine first the 3 periods of the entire penalty. b. The time included in the penalty prescribed should be divided into 3 equal portions, after subtracting the minimum (eliminate the 1 day) from the maximum of the penalty. c. The minimum of the minimum period should be the minimum of the given penalty (including the 1 day). d. The quotient should be added to the minimum prescribed (eliminate the 1 day) and the total will represent the maximum of the minimum period.  Take the maximum of the minimum period, add 1 day and make it the minimum of the medium period; then add the quotient to the minimum (eliminate the 1 day) of the medium period and the total will represent the maximum of the medium period.  Take the maximum of the medium period, add 1 day and make it the minimum of the maximum period; then add the quotient to the minimum (eliminate the 1 day) of the maximum period and the total will represent the maximum of the maximum period. 3. Subsidiary imprisonment Art. 38. Pecuniary liabilities; Order of payment. — In case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following order: 1. The reparation of the damage caused. 2. Indemnification of consequential damages. 3. The fine. 4. The cost of the proceedings. Art. 39. Subsidiary penalty. If the convict has no property with which to meet the fine mentioned in the paragraph 3 of the next preceding article, he shall be subject to a subsidiary
  • 98. CRIMINAL LAW REVIEWER 98 personal liability at the rate of one day for each eight pesos, subject to the following rules: 1) If the principal penalty imposed be prision correccional or arresto and fine,  he shall remain under confinement until his fine referred to in the preceding paragraph is satisfied,  but his subsidiary imprisonment shall not exceed one-third of the term of the sentence,  and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. 2) When the principal penalty imposed be only a fine,  the subsidiary imprisonment shall not exceed six months,  if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony. 3) When the principal imposed is higher than prision correccional,  no subsidiary imprisonment shall be imposed upon the culprit. 4) If the principal penalty imposed is not to be executed by confinement in a penal institution,  but such penalty is of fixed duration,  the convict, during the period of time established in the preceding rules,  shall continue to suffer the same deprivations as those of which the principal penalty consists. 5) The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him,  from the fine in case his financial circumstances should improve. (As amended by RA 5465, April 21, 1969). Subsidiary penalty – it is personal liability to be suffered by the convict who has no property with which to meet the fine at the rate of one day for each P8, subject to the rules provided for in Articles 39.  An accused cannot be made to undergo subsidiary imprisonment in case of insolvency to pay the fine imposed upon him when the subsidiary imprisonment is not imposed in the judgment of conviction. (Ramos v. Gonong)  A convict who has property not exempt from execution sufficient enough to meet the fine cannot choose to serve the subsidiary penalty.  Subsidiary imprisonment is not an accessory penalty. Rules as to subsidiary imprisonment: (1) If the penalty imposed is prision correcccional or arresto and fine – subsidiary imprisonment not to exceed 1/3 of the term of the sentence, and in no case to continue for more than 1 year. Fraction or part of the day not counted. (2) When the penalty imposed is fine only – subsidiary imprisonment, not to exceed 6 months, if the culprit is prosecuted for grave or less grave felony, and not to exceed 15 days, if prosecuted for light felony. (3) When the penalty imposed is higher than prision correccional – no subsidiary imprisonment. (4) If the penalty imposed is not to be executed by confinement, but of fixed duration – subsidiary penalty shall consist in the same deprivations as those of the principal penalty, under the same rules as in Nos. 1, 2 and 3 above. (5) In case the financial circumstances of the convict should improve, he shall pay the fine, notwithstanding the fact that the convict suffered subsidiary penalty thereof. No subsidiary penalty in the following cases: (1) When the penalty imposed is higher than prision correccional. (Art. 39 par. (2) For failure to pay the reparation of the damage caused, indemnification of the consequential damages, and the costs of the proceedings. (3) When the penalty imposed is fine and a penalty not to be executed by confinement in a penal institution and which has no fixed duration. Art. 46. Penalty to be imposed upon principals in general. — The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony. Whenever the law prescribes a penalty for a felony is general terms, it shall be understood as applicable to the consummated felony. GENERAL RULE: The penalty prescribed by law in general terms shall be imposed:  Upon the principals  For consummated felony EXCEPTION: The exception is when the penalty to be imposed upon the principal in frustrated or attempted felony is fixed by law. Whenever it is believed that the penalty lower by one or two degrees corresponding to said acts of execution is not in proportion to the wrong done, the law fixes a distinct penalty for the principal in frustrated or attempted felony. There are two ways to graduate penalties: 1. By Degrees, which is affected by the following factors: a. Stage of Execution (consummated, frustrated, or attempted) b. Extent of Participation (principal, accomplice, or accessory) c. Privileged mitigating circumstances d. Qualifying circumstances
  • 99. CRIMINAL LAW REVIEWER 99 e. Indeterminate Sentence Law (minimum, which is within the range of the penalty 1° lower than the penalty prescribed by the RPC) 2. By Periods (for divisible penalties, i.e., penalties with minimum, medium, and maximum periods), which is affected by the attendant ordinary mitigating/aggravating circumstances Principals, Accomplices and Accessories in Consummated, Frustrated and Attempted Felonies. Art. 46. Penalty to be imposed upon principals in general. The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony. Whenever the law prescribes a penalty for a felony is general terms, it shall be understood as applicable to the consummated felony. Art. 50. Penalty to be imposed upon principals of a frustrated crime. The penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated felony. Art. 51. Penalty to be imposed upon principals of attempted crimes. A penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principals in an attempt to commit a felony. Art. 52. Penalty to be imposed upon accomplices in consummated crime. The penalty next lower in degree than that prescribed by law for the consummated shall be imposed upon the accomplices in the commission of a consummated felony. Art. 53. Penalty to be imposed upon accessories to the commission of a consummated felony. The penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the accessories to the commission of a consummated felony. Art. 54. Penalty to imposed upon accomplices in a frustrated crime. The penalty next lower in degree than prescribed by law for the frustrated felony shall be imposed upon the accomplices in the commission of a frustrated felony. Art. 55. Penalty to be imposed upon accessories of a frustrated crime. The penalty lower by two degrees than that prescribed by law for the frustrated felony shall be imposed upon the accessories to the commission of a frustrated felony. Art. 56. Penalty to be imposed upon accomplices in an attempted crime. The penalty next lower in degree than that prescribed by law for an attempt to commit a felony shall be imposed upon the accomplices in an attempt to commit the felony. Art. 57. Penalty to be imposed upon accessories of an attempted crime. The penalty lower by two degrees than that prescribed by law for the attempted felony shall be imposed upon the accessories to the attempt to commit a felony. DIAGRAM OF THE APPLICATION OF ARTS. 50-57: CONSUMMATED FRUSTRATED ATTEMPTED PRINCIPALS 0 1° 2° ACCOMPLICES 1° 2° 3° ACCESSORIES 2° 3° 4° ―0‖ represents the penalty prescribed by law in defining a crime, which is to be imposed on the PRINCIPAL in a CONSUMMATED OFFENSE, in accordance with the provisions of Art. 46. The other figures represent the degrees to which the penalty must be lowered, to meet the different situations anticipated by law. EXCEPTIONS: Arts. 50 to 57 shall not apply to cases where the law expressly prescribes the penalty for frustrated or attempted felony, or to be imposed upon accomplices or accessories. (Art. 60). Art. 60. Exception to the rules established in Articles 50 to 57. The provisions contained in Articles 50 to 57, inclusive, of this Code shall not be applicable to cases in which the law expressly prescribes the penalty provided for a frustrated or attempted felony, or to be imposed upon accomplices or accessories. A DEGREE is one entire penalty, one whole penalty or one unit of the penalties enumerated in the graduated scales provided for in Art. 71. Each of the penalties of reclusion perpetua, reclusion temporal, prision mayor, etc., enumerated in the graduated scales of Art. 71 is a degree.
  • 100. CRIMINAL LAW REVIEWER 100 When there is a mitigating or aggravating circumstance, the penalty is lowered or increased by PERIOD only, EXCEPT when the penalty is divisible and there are two or more mitigating and without aggravating circumstances, in which case the penalty is lowered by degree. A PERIOD is one of the three equal portions called the minimum, medium and maximum of a divisible penalty. GENERAL RULE: An accomplice is punished by a penalty one degree lower than the penalty imposed upon the principal. EXCEPTIONS:  The ascendants, guardians, curators, teachers and any person who, by abuse of authority or confidential relationship, shall cooperate as accomplices in the crimes of rape, acts of lasciviousness, seduction, corruption of minors, white slate trade or abduction. (Art. 346)  One who furnished the place for the perpetration of the crime of slight illegal detention. (Art. 268) GENERAL RULE: An accessory is punished by a penalty two degrees lower than the penalty imposed upon the principal. EXCEPTIONS:  When accessory is punished as principal – knowingly concealing certain evil practices is ordinarily an act of the accessory, but in Art. 142, such act is punished as the act of the principal.  When accessories are punished with a penalty one degree lower: o Knowingly using counterfeited seal or forged signature or stamp of the President (Art. 162). o Illegal possession and use of a false treasury or bank note (Art. 168). o Using falsified document (Art. 173 par.3) o Using falsified dispatch (Art. 173 par. 2) Art. 61. Rules for graduating penalties. For the purpose of graduating the penalties which, according to the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed: 1) When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degrees shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 of this Code. 2) When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or more divisible penalties to be impose to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale. 3) When the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and minimum periods of the proper divisible penalty and the maximum periods of the proper divisible penalty and the maximum period of that immediately following in said respective graduated scale. 4) When the penalty prescribed for the crime is composed of several periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above mentioned respective graduated scale. 5) When the law prescribes a penalty for a crime in some manner not especially provided for in the four preceding rules, the courts, proceeding by analogy, shall impose corresponding penalties upon those guilty as principals of the frustrated felony, or of attempt to commit the same, and upon accomplices and accessories. This article provides for the rules to be observed in lowering the penalty by one or two degrees:  For the principal in frustrated felony  one degree lower;  For the principal in attempted felony  two degrees lower;  For the accomplice in consummated felony  one degree lower; and  For the accessory in consummated felony  two degrees lower. The rules provided for in Art. 61 should also apply in determining the MINIMUM of the indeterminate penalty under the Indeterminate Sentence Law. The MINIMUM of the indeterminate penalty is within the range of the penalty next lower than that prescribed by the RPC for the offense. Those rules also apply in lowering the penalty by one or two degrees by reason of the presence of privileged mitigating circumstance (Arts. 68 and 69), or when the penalty is divisible and there are two or more mitigating circumstances (generic) and no aggravating circumstance (Art. 64). The lower penalty shall be taken from the graduated scale in Art. 71. The INDIVISIBLE PENALTIES are: (1) death (2) reclusion perpetua (3) public censure The DIVISIBLE PENALTIES are: (1) reclusion temporal
  • 101. CRIMINAL LAW REVIEWER 101 (2) prision mayor (3) prision correccional (4) arresto mayor (5) destierro (6) arresto menor The divisible penalties are divided into three periods: MINIMUM, MEDIUM AND THE MAXIMUM FIRST RULE: When the penalty is single and indivisible.  Ex. reclusion perpetua  The penalty immediately following it is reclusion temporal.  Thus, reclusion temporal is the penalty next lower in degree. SECOND RULE (a): When the penalty is composed of two indivisible penalties  Ex. reclusion perpetua to death  The penalty immediately following the lesser of the penalties, which is reclusion perpetua, is reclusion temporal. SECOND RULE (b): When the penalty is composed of one or more divisible penalties to be imposed to their full extent  Ex. prision correccional to prision mayor  The penalty immediately following the lesser of the penalties of prision correccional to prision mayor is arresto mayor. THIRD RULE (a): When the penalty is composed of two indivisible penalties and the maximum period of a divisible penalty  Ex. reclusion temporal in its MAXIMUM period to death  The MEDIUM and MINIMUM period of the divisible penalty and the MAXIMUM of that immediately following penalty is the penalty next lower in degree. Death Penalty for the principal in consummated murder Reclusion Perpetua Reclusion Temporal Maximum Medium Penalty for accomplice; or for principal in frustrated murder Minimum Prision Mayor Maximum Medium Minimum THIRD RULE (b): When the penalty is composed of one indivisible penalty and the maximum period of a divisible penalty.  Ex. Reclusion temporal in its MAXIMUM period to Reclusion perpetua  The same rule shall be observed in lowering the penalty by one or two degrees. FOURTH RULE: When the penalty is composed of several periods.  Ex. Prision Mayor in its MEDIUM period to Reclusion temporal in its MINIMUM period.  This rule contemplates a penalty composed of at least 3 periods.  The several periods must correspond to different divisible penalties. Reclusion temporal Maximum Medium Minimum Penalty for the principal in the consummated felony Prision Mayor Maximum Medium Minimum Penalty for the accomplice; or principal in frustrated felony Prision Correccional Maximum Medium Minimum FIFTH RULE (a): When the penalty has two periods  Ex. Prision correccional in its MINIMUM and MEDIUM periods Prision correccional Maximum Medium The penalty prescribed for the felony Minimum Arresto Mayor Maximum The penalty next lower Medium Minimum FIFTH RULE (b): When the penalty has one period.  Ex. Prision Mayor in its MAXIMUM period  If the penalty is any one of the three periods of a divisible penalty, the penalty next lower in degree shall be that period next following the given penalty.  The penalty immediately inferior is prision mayor in its MEDIUM period. SIMPLIFIED RULES: The rules prescribed in pars. 4 and 5 of Art. 61 may be simplified as follows: (1) If the penalty prescribed by the Code consists in 3 periods, corresponding to different divisible penalties, the penalty next lower in degree is the penalty consisting in the 3 periods down in the scale. (2) If the penalty prescribed by the Code consists in 2 periods, the penalty next lower in degree is the penalty consisting in 2 periods down in the scale. (3) If the penalty prescribed by the Code consists in only 1 period, the penalty next lower in degree is the next period down in the scale. Effects of Mitigating and Aggravating Circumstances Art. 62. Effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency.
  • 102. CRIMINAL LAW REVIEWER 102 Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules: (1) Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty. (2) The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. (3) Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any other personal cause, shall only serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant. (4) The circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. (5) Habitual delinquency shall have the following effects: a. Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the last crime of which he be found guilty and to the additional penalty of prision correccional in its medium and maximum periods; b. Upon a fourth conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its minimum and medium periods; and c. Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period (6) Notwithstanding the provisions of this article, the total of the two penalties to be imposed upon the offender, in conformity herewith, shall in no case exceed 30 years. (7) For the purpose of this article, a person shall be deemed to be habitual delinquent, is within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, he is found guilty of any of said crimes a third time or oftener. What are the effects of the attendance of mitigating or aggravating circumstances? 1) Aggravating circumstances which are not considered for the purpose of increasing the penalty: a. Those that constitute a separate crime punishable by law. b. Those that are inherent in the crime committed: i. Included by law in defining the crime ii. Inherent in the crime but of necessity they accompany the commission thereof 2) Aggravating or mitigating circumstances that serve to aggravate or mitigate the liability of the offender to whom such are attendant. Those arising from:  Moral attributes of the offender  His private relations with the offended party  Any other personal cause 3) Aggravating or mitigating circumstances that affect the offenders only who had knowledge of them at the time of the execution of the act or their cooperation therein. What are the legal effects of habitual delinquency?  Third conviction. The culprit is sentenced to the penalty for the crime committed and to the additional penalty of prision correccional in its medium and maximum period.  Fourth conviction. The penalty is that provided by law for the last crime and the additional penalty of prision mayor in its minimum and medium periods.  Fifth or additional conviction. The penalty is that provided by law for the last crime and the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period. Note:  In no case shall the total of the 2 penalties imposed upon the offender exceed 30 years.  The law does not apply to crimes described in Art. 155.  The imposition of the additional penalty on habitual delinquents are CONSTITUTIONAL because such law is neither an EX POST FACTO LAW nor an additional punishment for future crimes.  It is simply a punishment on future crimes on account of the criminal propensities of the accused.  The imposition of such additional penalties is mandatory and is not discretionary.  Habitual delinquency applies at any stage of the execution because subjectively, the offender reveals the same degree of depravity or perversity as the one who commits a consummated crime.  It applies to all participants because it reveals persistence in them of the inclination to wrongdoing and of the perversity of character that led them to commit the previous crime. Cases where attending aggravating or mitigating circumstances are not considered in the imposition of penalties 1) Penalty that is single and indivisible 2) Felonies through negligence 3) When the penalty is a fine 4) When the penalty is prescribed by a special law.
  • 103. CRIMINAL LAW REVIEWER 103 (Asked 3 times in the Bar Exams) Art. 63. Rules for the application of indivisible penalties. 1) In all cases in which the law prescribes a single indivisible penalty, 2) it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. 3) In all cases in which the law prescribes a penalty composed of two indivisible penalties, 4) the following rules shall be observed in the application thereof: a. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. b. When there are neither mitigating nor aggravating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. c. When the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. d. When both mitigating and aggravating circumstances attended the commission of the act, the court shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation. Rules for the application of indivisible penalties: a. Penalty is single and indivisible i. The penalty shall be applied regardless of the presence of mitigating or aggravating circumstances. ii. Ex. reclusion perpetua or death b. Penalty is composed of 2 indivisible penalties: 1. One aggravating circumstance present: HIGHER penalty 2. No mitigating circumstances present: LESSER penalty 3. Some mitigating circumstances present and no aggravating: LESSER penalty 4. Mitigating and aggravating circumstances offset each other  Basis of penalty: number and importance. (Asked 2 times in the Bar Exams) People v. Formigones (1950): Held: The penalty applicable for parricide under Art. 246 of the RPC is composed only of 2 indivisible penalties, reclusion perpetua to death. Although the commission of the act is attended by some mitigating circumstance without any aggravating circumstance to offset them, Art. 63 of the RPC should be applied. The said article provides that when the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. Art. 64. Rules for the application of penalties which contain three periods. 1) In cases in which the penalties prescribed by law contain three periods, 2) whether it be a single divisible penalty or composed of three different penalties, 3) each one of which forms a period in accordance with the provisions of Articles 76 and 77, 4) the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances: i. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. ii. When only a mitigating circumstances is present in the commission of the act, they shall impose the penalty in its minimum period. iii. When an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period. iv. When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight. v. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. vi. Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law, in its maximum period. vii. Within the limits of each period, the court shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater and lesser extent of the evil produced by the crime. Rules for the application of DIVISIBLE PENALTIES 1) No aggravating and No mitigating: MEDIUM PERIOD 2) One mitigating: MINIMUM PERIOD 3) One aggravating: (but regardless of the number of aggravating circumstances, the courts cannot exceed the penalty provided by law in its maximum period): MAXIMUM PERIOD 4) Mitigating and aggravating circumstances present:  to offset each other according to relative weight 5) 2 or more mitigating and no aggravating:
  • 104. CRIMINAL LAW REVIEWER 104  one degree lower (has the effect of a privileged mitigating circumstance) NOTE: Art. 64 does not apply to: 1) indivisible penalties 2) penalties prescribed by special laws 3) fines 4) crimes committed by negligence (Asked 3 times in the Bar Exams) Art. 67. Penalty to be imposed when not all the requisites of exemption of the fourth circumstance of Article 12 are present. When all the conditions required in circumstances Number 4 of Article 12 of this Code to exempt from criminal liability are not present, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon the culprit if he shall have been guilty of a grave felony, and arresto mayor in its minimum and medium periods, if of a less grave felony. Penalty to be imposed if the requisites of accident (Art. 12 par 4) are not all present: a) GRAVE FELONY: arresto mayor maximum period to prision correccional minimum period b) LESS GRAVE FELONY: arresto mayor minimum period and medium period Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. 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 courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking. Penalty to be imposed when the crime committed is not wholly excusable:  One or two degrees lower  if the majority of the conditions for justification or exemption in the cases provided in Arts. 11 and 12 are present. People v. Lacanilao (1988): Held: Incomplete fulfillment of duty is a privileged mitigating circumstance which not only cannot be offset by aggravating circumstances but also reduces the penalty by one or two degrees than that prescribed b law. The governing provision is Art. 69 of the RPC. G. Special rules for certain situations 1. Complex Crimes Art. 48. Penalty for complex crimes. — When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. The rule for complex crimes is to impose the penalty for the most serious offense in its MAXIMUM period. Monteverde v. People (2002): Monteverde was purportedly charged with the complex crime of estafa through falsification of a commercial document for allegedly falsifying the document she had submitted to show that the money donated by PAGCOR was used and spent for lighting materials for her barangay. Held: Under Article 48 of the Revised Penal Code, a complex crime refers to: 1) the commission of at least two grave or less grave felonies that must both (or all) be the result of a single act, or 2) one offense must be a necessary means for committing the other (or others). Using the above guidelines, the acts cannot constitute a complex crime. Specifically, the alleged actions showing falsification of a public and/or a commercial document were not necessary to commit estafa. Neither were the two crimes the result of a single act. People v. Gonzalez (Supra): Both of the families of Andres and that of Gonzalez were on their way to the exit of the Loyola Memorial Park. Gonzales was driving with his grandson and 3 housemaids, while Andres was driving with his pregnant wife, Feliber, his 2yr old son, Kenneth, his nephew Kevin and his sister-in-law. At an intersection, their two vehicles almost collided. Gonzales continued driving while Andres tailed Gonzales‘ vehicle and cut him off when he found the opportunity to do so, then got out of his vehicle and knocked on the appellant's car window. Heated exchange of remarks followed. On his way back to his vehicle, he met Gonzales son, Dino. Andres had a shouting match this time with Dino. Gonzales then alighted from his car and fired a single shot at the last window on the left side of Andres' vehicle at an angle away from Andres. The single bullet fired hit Kenneth, Kevin and Feliber
  • 105. CRIMINAL LAW REVIEWER 105 which caused the latter‘s death. Held: The rules on the imposition of penalties for complex crimes under Art. 48 of the Revised Penal Code are not applicable in this case. Art. 48 applies if a single act constitutes two or more grave and less grave felonies or when an offense is a necessary means of committing another; in such a case, the penalty for the most serious offense shall be imposed in its maximum period. Considering that the offenses committed by the act of the appellant of firing a single shot are: one count of homicide, a grave felony, and two counts of slight physical injuries, a light felony, the rules on the imposition of penalties for complex crimes, which requires two or more grave and/or less grave felonies, will not apply. People v. Comadre (2004): Robert Agbanlog, Wabe, Bullanday, Camat and The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo principle, is intended to favor the accused by imposing a single penalty irrespective of the crimes committed. The rationale being, that the accused who commits two crimes with single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions. The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a ―single criminal impulse‖ which shows his lesser degree of perversity. People v. Delos Santos (2001): Held: Considering that the incident was not a product of a malicious intent but rather the result of a single act of reckless driving, Glenn should be held guilty of the complex crime of reckless imprudence resulting in multiple homicide with serious physical injuries and less serious physical injuries. The slight physical injuries caused by Glenn to the ten other victims through reckless imprudence, would, had they been intentional, have constituted light felonies. Being light felonies, which are not covered by Article 48, they should be treated and punished as separate offenses. Separate informations should have, therefore, been filed. People v. Velasquez (2000): Velasquez, poked a toy gun and forced Karen to go with her at his grandmother‘s house. Out of fear and not knowing that the gun that Velasquez was holding is a mere toy, Karen went with Velasquez. Velasquez then raped Karen twice. The trial court convicted Velasquez of two counts of rape. Held: Considering that Velasquez forcibly abducted Karen and then raped her twice, he should be convicted of the complex crime of forcible abduction with rape and simple rape. The penalty for complex crimes is the penalty for the most serious crime which shall be imposed in its maximum period. Rape is the more serious of the two crimes and is punishable with reclusion perpetua under Article 266-A of the Revised Penal Code and since reclusion perpetua is a single indivisible penalty, it shall be imposed as it is. The subsequent rape committed by Velasquez can no longer be considered as a separate complex crime of forcible abduction with rape but only as a separate act of rape punishable by reclusion perpetua. 2. Crimes Different from That Intended Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. — In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed: 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. 2. If the penalty prescribed for the felony committed be lower than that corresponding to the one which the accused intended to commit, the penalty for the former shall be imposed in its maximum period. 3. The rule established by the next preceding paragraph shall not be applicable if the acts committed by the guilty person shall also constitute an attempt or frustration of another crime, if the
  • 106. CRIMINAL LAW REVIEWER 106 law prescribes a higher penalty for either of the latter offenses, in which case the penalty provided for the attempted or the frustrated crime shall be imposed in its maximum period. Either the crime committed be more grave than the crime intended or the crime intended be more grave than the crime committed, the penalty to be imposed should be the penalty for the lesser felony in its MAXIMUM period. Except: if the lesser felony constitutes an attempt or frustration of another felony. Example: If the crime intended was homicide, but the crime committed was parricide, the penalty to be imposed is the penalty for homicide in its MAXIMUM period. Impossible Crimes Art. 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. — When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine from 200 to 500 pesos. Depending upon the social danger and the degree of criminality shown by the offender, the penalty for impossible crimes is arresto mayor or fine of P200- P500. Plural Crimes (supra) Additional Penalty for Certain Accessories Art. 58. Additional penalty to be imposed upon certain accessories. Those accessories falling within the terms of paragraphs 3 of Article 19 of this Code who should act with abuse of their public functions, shall suffer the additional penalty of  absolute perpetual disqualification if the principal offender shall be guilty of a grave felony, and that  of absolute temporary disqualification if he shall be guilty of a less grave felony. Absolute perpetual disqualification if the principal offender is guilty of a grave felony. Absolute temporary disqualification if the principal offender is guilty of a less grave felony. 3. Where the Offender Is Below 18 Years Art. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraphs next to the last of Article 80 of this Code, the following rules shall be observed: 1) Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed. 2) Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. PD No. 603. ART. 192. Suspension of Sentence and Commitment of Youthful Offender. (1) If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him (2) the court shall determine the imposable penalty, including any civil liability chargeable against him. (3) However, instead of pronouncing judgment of conviction, the court shall suspend all further proceedings and shall commit such minor to the custody or care of the Department of Social Welfare, or to any training institution (4) until he shall have reached twenty-one years of age or, for a shorter period as the court may deem proper, (5) after considering the reports and recommendations of the Department of Social Welfare or the agency or responsible individual under whose care he has been committed. The youthful offender shall be subject to visitation and supervision by a representative of the Department of Social Welfare or any duly licensed agency or such other officer as the court may designate subject to such conditions as it may prescribe. Art. 68 applies to such minor if his application for suspension of sentence is disapproved or if while in the reformatory institution he becomes incorrigible in which case he shall be returned to the court for the imposition of the proper penalty. 9 to 15 years only with discernment: at least 2 degrees lower. 15 to 18 years old: penalty next lower
  • 107. CRIMINAL LAW REVIEWER 107 Except if the act is attended by two or more mitigating and no aggravating circumstance, the penalty being divisible, a minor over 15 but under 18 years old may still get a penalty two degrees lower. Art. 68 provides for two of the PRIVILEGED MITIGATING CIRCUMSTANCES (Asked once in the Bar Exams) H. Execution and Service Execution of Penalties Art. 78. When and how a penalty is to be executed. No penalty shall be executed except by virtue of a final judgment. A penalty shall not be executed in any other form than that prescribed by law, nor with any other circumstances or incidents than those expressly authorized thereby. In addition to the provisions of the law, the special regulations prescribed for the government of the institutions in which the penalties are to be suffered shall be observed with regard to  the character of the work to be performed,  the time of its performance, and other incidents connected therewith,  the relations of the convicts among themselves and other persons,  the relief which they may receive, and  their diet. The regulations shall make provision for the separation of the sexes in different institutions, or at least into different departments and also for the correction and reform of the convicts. The judgment must be final before it can be executed, because the accused may still appeal within 15 days from its promulgation. But if the defendant has expressly waived in writing his right to appeal, the judgment becomes final and executory. See Rules and regulations to implement RA No. 8177 under Capital Punishment. Art. 86. Reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor. The penalties of reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor, shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law in the future. Art. 87. Destierro. Any person sentenced to destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated. Convict shall not be permitted to enter the place designated in the sentence nor within the radius specified,  which shall not more than 250 and not less than 25 km from the place designated. If the convict enters the prohibited area, he commits evasion of sentence. Destierro is imposed:  When the death or serious physical injuries is caused or are inflicted under exceptional circumstances (art. 247);  When a person fails to give bond for good behavior (art. 284);  As a penalty for the concubine in the crime of concubinage (Art. 334);  When after lowering the penalty by degrees, destierro is the proper penalty. Art. 88. Arresto menor. The penalty of arresto menor shall be served in the municipal jail, or in the house of the defendant himself under the surveillance of an officer of the law, when the court so provides in its decision, taking into consideration the health of the offender and other reasons which may seem satisfactory to it. Service of the penalty of arresto menor:  In the municipal jail  In the house of the offender, but under the surveillance of an officer of the law For health or other good reasons as determined by the court. In the Matter of the petition for Habeas Corpus of Pete Lagran (2001): The accused was convicted of 3 counts of violating BP22 and was sentenced to imprisonment of 1 year for each count. He was detained on Feb. 24, 1999. On Mar. 19, 2001, he filed a petition for habeas corpus claiming he completed the service of his sentence. Citing Art. 70, RPC, he claimed that he shall serve the penalties simultaneously. Thus, there is no more legal basis for his detention. Held: Art. 70 allows simultaneous service of two or more penalties only if the nature of the penalties so permit.
  • 108. CRIMINAL LAW REVIEWER 108 In the case at bar, the petitioner was sentenced to suffer one year imprisonment for every count of the offense committed. The nature of the sentence does not allow petitioner to serve all the terms simultaneously. The rule of successive service of sentence must be applied. (Asked once in the Bar Exams) 1. Probation Law (P.D. 968, as amended) a. Definition of terms (Sec. 3) Probation – a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer. Probationer – a person placed on probation Probation officer – one who investigates for the court a referral for probation or supervises a probationer or both. b.Purpose (Sec. 2) 1. Promote the correction and rehabilitation of an offender by providing him with individualized treatment 2. Provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence 3. Prevent the commission of offenses c. Grant of probation, manner and conditions Grant of probation (Sec. 4) Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best: Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. The provisions of Sec. 4 of PD 968, as above amended, shall not apply to those who have already filed their respective applications for probation at the time of the effectivity of this Decree. Llamado v. CA (1989): In its present form, Section 4 of the Probation Law establishes a much narrower period during which an application for probation may be filed with the trial court: ―after the trial curt shall have convicted and sentenced a defendant and – within the period for perfecting an appeal‖. The provision expressly prohibits the grant of an application for probation if the defendant has perfected an appeal from the judgment of conviction. Petitioner‘s right to apply for probation was lost when he perfected his appeal from the judgment of the trial court. The trial court lost jurisdiction already over the case. Salgado v. CA (1990): There is no question that the decision convicting Salgado of the crime of serious physical injuries had become final and executory because the filing by respondent of an application for probation is deemed a waiver of his right to appeal. The grant of probation does not extinguish the civil liability of the offender. The order of probation with one of the conditions providing for the manner of payment of the civil liability during the period of probation did not increase or decrease the civil liability adjudged. The conditions listed under Sec. 10 of the Probation law are not exclusive. Courts are allowed to impose practically any term it chooses, the only limitation being that it does not jeopardize the constitutional rights of the accused. Office of the Court Administrator v. Librado (1996): Held: While indeed the purpose of the Probation Law is to save valuable human material, it must not be forgotten that unlike pardon probation does not obliterate the crime of which the person under probation has been convicted. The image of the judiciary is tarnished by conduct involving moral turpitude. The reform and rehabilitation of the probationer cannot justify his retention in the government service.
  • 109. CRIMINAL LAW REVIEWER 109 Conditions of probation (Sec. 10) Sec. 10. Conditions of Probation – Every probation order issued by the court shall contain conditions requiring that the probationer shall: a) Present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within 72 hours from receipt of the order; b) Report to the probation officer at least once a month at such time and place as specified by said officer. The court may also require the probationer to: a) Cooperate with a program of supervision; b) Meet his family responsibilities; c) Devote himself to a specific employment and not to change said employment without the prior written approval of the probation officer; d) Undergo medical, psychological or psychiatric examination and treatment and enter and remain in a specified institution, when required for that purpose; e) Pursue a prescribed secular study or vocational training; f) Attend or reside in a facility established for instruction, recreation or residence of persons on probation; g) Refrain from visiting houses of ill-repute; h) Abstain from drinking intoxicating beverages to excess; i) Permit the probation officer or an authorized social worker to visit his home and place of work; j) Reside at premises approved by it and not to change his residence without its prior written approval; or k) Satisfy any other condition related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience. d. Criteria of placing an offender on probation (Sec. 8) 1. All information relative to the – a. character, b. antecedents, c. environment, d. mental, and e. physical condition of the offender 2. Available institutional and community resources. e. Disqualified offenders Probation under PD No. 968, as amended, is intended for offenders who are 18 years of age and above, and who are not otherwise disqualified by law. Offenders who are disqualified are those: a) Sentenced to serve a maximum term of imprisonment of more than six years; b) Convicted of subversion or any offense against the security of the State, or the Public Order; c) Who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not more than Two Hundred Pesos; d) Who have been once on probation under the provisions of this Decree; and e) Who are already serving sentence at the time the substantive provisions of PD 968 became applicable pursuant to Sec. 33 hereof (Effectivity clause: PD 968‘s substantive provisions took effect on 3 January 1978) f. Period of probation (Sec. 14) Sec. 14. a. The period of probation of a defendant sentenced to a term of imprisonment of not more than one year shall not exceed 2 years, and in all other cases, said period shall not exceed 6 years. b. When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment in case of insolvency, the period of probation shall not be less than nor be more than twice the total number of days of subsidiary imprisonment as computed at the rate established in Art. 39 of the RPC, as amended. Question: When is the period for filing of probation? Answer: Filing period is within the period for perfecting an appeal. Question: Where do you file your probation application? Answer: Trial Court Question: Does the law allow the simultaneous filing of probation and appeal? Answer: No. It‘s either you file for probation or you file for appeal. Only one choice, if you choose one then you are barred from using the other. Question: When shall probation be denied? Answer: Probation shall be denied when: 1. the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution. 2. there is undue risk that during the probation, the offender will commit another crime. 3. probation will deprecate the seriousness of the offense committed. Question: What if the offender violates the conditions of his probation? Answer: S/He shall serve the penalty imposed for the offense under which s/he was placed on probation. Question: How long may a convict be placed on probation? Answer:
  • 110. CRIMINAL LAW REVIEWER 110 1. if the convict is sentence to imprisonment of not more than one year, probation shall not exceed two years 2. if s/he sentenced to more than one year, probation shall not exceed six years. 3. if the sentence is only a fine (offender in this case is made to suffer subsidiary imprisonment), probation Shall be not less than nor more than twice the total days of subsidiary imprisonment. Question: Does the probation law apply to Drug Traffickers and Pushers? Answer: NO Section 24 of RA 9165 (The Comprehensive Dangerous Drugs Act) states that: Section 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. – Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. Lagrosa vs. People (2003): A person who appeals his conviction for purposes of reducing the penalty to that which is within the probationable limit may still apply for probation. (ASKED 16 TIMES IN THE BAR EXAMS) g. Arrest of probationer (Sec. 15) Sec. 15. Arrest of probationer; subsequent dispositions. – At any time during probation, the court may issue a warrant for the arrest of a probationer for any serious violation of the conditions of probation. The probationer, once arrested and detained, shall immediately be brought before the court for a hearing of the violation charged. The defendant may be admitted to bail pending such hearing. In such case, the provisions regarding release on bail of persons charged with a crime shall be applicable to probationers arrested under this provision. In the hearing, which shall be summary in nature, the probationer shall have the right to be informed of the violation charged and to adduce evidence in his favor. The court shall not be bound by the technical rules of evidence but may inform itself of all the facts which are material and relevant to ascertain the veracity of the charge. The State shall be represented by a prosecuting officer in any contested hearing. If the violation is established, the court may revoke or continue his probation and modify the conditions thereof. If revoked, the court shall order the probationer to serve the sentence originally imposed. An order revoking the grant of probation or modifying the terms and conditions thereof shall not be appealable. Suspension in case of Insanity or Minority Insanity Art. 79. Suspension of the execution and service of the penalties in case of insanity. When a convict shall become insane or an imbecile after final sentence has been pronounced, the execution of said sentence shall be suspended only with regard to the personal penalty, the provisions of the second paragraph of circumstance number 1 of Article 12 being observed in the corresponding cases. If at any time the convict shall recover his reason, his sentence shall be executed, unless the penalty shall have prescribed in accordance with the provisions of this Code. The respective provisions of this section shall also be observed if the insanity or imbecility occurs while the convict is serving his sentence. Only execution of personal penalty is suspended: civil liability may be executed even in case of insanity of convict. An accused may become insane: 1) at the time of commission of the crime  exempt from criminal liability 2) at the time of the trial  court shall suspend hearings and order his confinement in a hospital until he recovers his reason 3) at the time of final judgment or while serving sentence execution suspended with regard to the personal penalty only Minority Please refer to succeeding subsection on RA 9344 and PD 603 h. Termination of probation; exception i. The Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165) Sec. 16. Termination of probation – After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon, the case is deemed terminated. The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted. The probationer and the probation officer shall each be furnished with a copy of such order. The expiration of the probation period alone does not automatically terminate probation. Probation is not coterminous with its period. There must first be
  • 111. CRIMINAL LAW REVIEWER 111 issued by the court, an order of final discharge based on the report and recommendation of the probation officer. Only from such issuance can the case of the probationer be deemed terminated. (Bala v. Martinez, supra) EXCEPTION The Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165) RA 9165, Sec. 24. Non-applicability of the Probation Law for drug traffickers and pushers – Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or PD 968, as amended. ii. Juvenile Justice and Welfare Act of 2006 (R.A. 9344); also refer to Child and Youth Welfare Code (P.D. 603, as amended) (a) Definition of child in conflict with the law (Sec. 4, RA 9344) Child in conflict with the law – a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws Child – a person under 18 years (b) Exemption from criminal liability 1. Child 15 years of age or under at the time of the commission of the offense = EXEMPT from criminal liability  However, the child shall be subjected to an intervention program (per Sec. 20 of RA 9344) 2. Child above 15 years but below 18 years of age (15 ≤ Age of child at time of commission of offense ≤ 18) = EXEMPT from criminal liability and subjected to intervention program  UNLESS the child acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with RA 9344 Exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. (Sec. 6, RA 9344) RA 9344 compared to PD 603 1. Minimum age of criminal responsibility PD 603 Sec. 189. EXEMPT from criminal liability:  Child 9 years of age or under at time of commission of offense  9 ≤ Age of child at time of commission of offense ≤ 15 (UNLESS s/he acted with discernment RA 9344 Child under 15 years of age shall be exempt from criminal liability, regardless of whether or not s/he acted with discernment 2. Discernment PD 603 (Secs. 189 & 192) Child over 9 years and under 15 years of age who acted w/ discernment – court shall determine imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court, upon application of the youthful offender and if it finds that the best interest of the public as well as that of the offender will be served thereby, may suspend all further proceedings and shall commit such minor to the custody or care of the DSWD or to any training institution operated by the government, or duly licensed agencies or any other responsible person, until he shall have reached 21 years of age or, for a shorter period as the court may deem proper. RA 9344 Child above 15 years but below 18 years of age who acted with discernment shall be subjected to the appropriate proceedings in accordance with the Act. 3. Suspension of sentence PD 603 (Sec. 193) No automatic suspension of sentence.  The youthful offender should apply for a suspended sentence and it is discretionary on the court to approve the application. The order of the court denying an application for suspension of sentence shall not be appealable. RA 9344 Suspension of sentence is automatic (c) Juvenile justice and welfare system RA 9344, Sec. 4(m). ―Juvenile Justice and Welfare System‖ refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. NOTE: Please refer to Title V of RA 9344 for the pertinent provisions. (Sections on: 1. Initial contact with the child 2. Diversion 3. Prosecution 4. Court proceedings 5. Confidentiality of records and proceedings) Diversion RA 9344, Sec. 4(j). ―Diversion‖ refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological, or educational background without resulting to formal court proceedings.
  • 112. CRIMINAL LAW REVIEWER 112 ―Diversion Program‖ refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. Intervention program SEC. 18. Development of a Comprehensive Juvenile Intervention Program. - A Comprehensive juvenile intervention program covering at least a 3- year period shall be instituted in LGUs from the barangay to the provincial level. The LGUs shall set aside an amount necessary to implement their respective juvenile intervention programs in their annual budget. The LGUs, in coordination with the LCPC, shall call on all sectors concerned, particularly the child- focused institutions, NGOs, people's organizations, educational institutions and government agencies involved in delinquency prevention to participate in the planning process and implementation of juvenile intervention programs. Such programs shall be implemented consistent with the national program formulated and designed by the JJWC. The implementation of the comprehensive juvenile intervention program shall be reviewed and assessed annually by the LGUs in coordination with the LCPC. Results of the assessment shall be submitted by the provincial and city governments to the JJWC not later than March 30 of every year. SEC. 19. Community-based Programs on Juvenile Justice and Welfare. - Community-based programs on juvenile justice and welfare shall be instituted by the LGUs through the LCPC, school, youth organizations and other concerned agencies. The LGUs shall provide community-based services which respond to the special needs, problems, interests and concerns of children and which offer appropriate counseling and guidance to them and their families. These programs shall consist of three levels: (a) Primary intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending; (b) Secondary intervention includes measures to assist children at risk; and (c) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other measures to prevent re- offending. System of diversion (Sec. 23, RA 9344) SEC. 23. System of Diversion. - Children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the conditions herein provided: (a) Where the imposable penalty for the crime committee is not more than six (6) years imprisonment, the law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other members of the LCPC shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and his/her family shall be present in these activities. (b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the local social welfare and development officer shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC; (c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. Distinguished from Preventive Imprisonment Art. 29. Period of preventive imprisonment deducted from term of imprisonment. Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases: a. When they are recidivists or have been convicted previously twice or more times of any crime; and b. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. (As amended by Republic Act 6127, June 17, 1970). Whenever an accused has undergone preventive imprisonment  for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced  and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by E.O. No. 214, July 10, 1988). The accused undergoes preventive imprisonment when the offense charged is nonbailable, or even if bailable, he cannot furnish the required bail.
  • 113. CRIMINAL LAW REVIEWER 113 The convict is to be released immediately if the penalty imposed after trial is less than the full time or four-fifths of the time of the preventive imprisonment. The accused shall be released immediately whenever he has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment for the offense charged. CHAPTER VI. MODIFICATION AND EXTINCTION OF CRIMINAL LIABILITY (ASKED 7 TIMES IN THE BAR EXAMS) This section enumerates and explains the ways in which criminal liability is extinguished. ONLY PRESCRIPTION OF CRIMES, PRESCRIPTION OF PENALTIES, PARDON BY OFFENDED PARTY, PARDON BY THE CHIEF EXECUTIVE AND AMNESTY SHALL BE DISCUSSED IN DETAIL, FOLLOWING THE SC OUTLINE. Two kinds of extinguishment of criminal liability: A. TOTAL EXTINGUISHMENT 1. By prescription of crime 2. By prescription of penalty 3. By the death of the convict 4. By Service of sentence 5. By Amnesty 6. By Absolute Pardon 7. By the marriage of the offended woman and the offender in the crimes of rape, abduction, seduction and acts of lasciviousness. (Art. 344) B. PARTIAL EXTINGUISHMENT 1. By Conditional Pardon 2. By Commutation of sentence 3. For good conduct, allowances which the culprit may earn while he is serving sentence 4. By Parole 5. By Probation Important: The Supreme Court ruled that re-election to public office is not one of the grounds by which criminal liability is extinguished. This is only true in administrative cases but not in criminal cases. A. Prescription of crimes (Art. 90) (ASKED 4 TIMES IN THE BAR EXAMS) Definition: The forfeiture or loss of the right of the State to prosecute the offender, after the lapse of a certain period of time. General Rule: Prescription of the crime begins on the day the crime was committed. Exception: The crime was concealed, not public, in which case, the prescription thereof would only commence from the time the offended party or the government learns of the commission of the crime. Difference between Prescription of Crime and Prescription of the Penalty Prescription of crime Prescription of the penalty Forfeiture of the State to prosecute after a lapse of a certain time Forfeiture to execute the final sentence after the lapse of a certain
  • 114. CRIMINAL LAW REVIEWER 114 time Question: What happens when the last day of the prescriptive period falls on a Sunday or legal holiday? Answer: The information can no longer be filed on the next day as the crime has already prescribed. Prescriptive Periods of Crimes (ASKED 4 TIMES IN THE BAR EXAMS) 1) Crimes punishable by death, reclusion perpetua or reclusion temporal 20 years 2) Afflictive penalties 15 years 3) Correctional penalties Note: Those punishable by arresto mayor Note: When the penalty fixed law is a compound one 10 years 5 years The highest penalty shall be made a basis 4) Libel 1 year 5) Oral defamation and slander by deed 6 months 6) Simple slander 2 months 7) Grave slander 6 months 8) Light offenses 2 months 9) Crimes punishable by fines a) Fine is afflictive b) Fine is correctional c) Fine is light Note: Subsidiary penalty for nonpayment not considered in determining the period Note: When fine is an alternative penalty higher than the other penalty which is by imprisonment, prescription of the crime is based on the fine. 15 years 10 years 2 months Prescriptive periods under special laws and municipal ordinances (Act 3763, amending Act 3326) Offenses punished only by fine or imprisonment for not more than one month or both 1 year Imprisonment for more than one month, but less than two years 4 years Imprisonment for two years but less than six years 8 years Imprisonment for six years or more 12 years Offenses under Internal Revenue Law 5 years Violations of municipal ordinances 2 months Violations of the regulations or conditions of certificate of convenience by the Public Service Commission 2 months *Not applicable where the special law provides for its own prescriptive period Computation of Prescription of Offenses (Art. 91) 1) Commences to run from the day on which the crime is discovered by the offended party, the authorities or their agents. 2) Interrupted by the filing of complaint or information 3) It shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or unjustifiably stopped for any reason not imputable to the accused. Note: Termination must be FINAL as to amount to a jeopardy that would bar a subsequent prosecution. 4) The term of prescription shall not run when the offender is absent from the Philippine archipelago. 5) For continuing crimes, prescriptive period cannot begin to run because the crime does not end. B. Prescription of penalties (Art. 92) (ASKED 4 TIMES IN THE BAR EXAMS) Definition: The loss or forfeiture of the right of the government to execute the final sentence after the lapse of a certain period of time. Prescriptive Periods of Penalties Death and reclusion perpetua 20 years Other afflictive penalties 15 years Correctional penalties Note: If arresto mayor 10 years 5 years Light penalties 1 year Computation of Prescription of Penalties (Art. 93) Elements: 1. Penalty is imposed by final judgment 2. Convict evaded service of sentence by escaping during the term of his sentence 3. The convict who has escaped from prison has not given himself up, or been captured, or gone to a foreign country with which we have no extradition treaty, or committed another crime 4. The penalty has prescribed because of the lapse of time from the date of the evasion of service of the sentence by the convict. Period commences to run from the date when he culprit evaded18 the service of sentence When interrupted:  Convict gives himself up  Is captured  Goes to a foreign country with which we have no extradition treaty 18 "Escape" in legal parlance and for purposes of Articles 93 and 157 of the RPC means unlawful departure of prisoner from the limits of his custody. Clearly, one who has not been committed to prison cannot be said to have escaped therefrom (Del Castillo v. Torrecampo (2002).
  • 115. CRIMINAL LAW REVIEWER 115  Commits any crime before the expiration of the period of prescription Question: What happens in cases where our government has extradition treaty with another country but the crime is not included in the treaty? Answer: It would interrupt the running of the prescriptive period. Question: What is the effect of the acceptance of the convict of a conditional pardon? Answer: It would interrupt the acceptance of the prescriptive period. Question: What happens if the culprit is captured but he evades again the service of his sentence? Answer: The period of prescription that ran during the evasion is not forfeited. The period of prescription that has run in his favor should be taken into account. NOTE: THE RPC PROVISIONS ON CIVIL LIABILITY IS NOT INCLUDED IN THE SC OUTLINE. C. Pardon by the offended party Art. 23. Effect of pardon by the offended party. — A pardon of the offended party does not extinguish criminal action except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver. This article states the extent of a pardon made by the offended party. Under this article, a pardon does not extinguish the criminal liability of an offender except for cases under Article 344 (Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness). But the civil liability with regard to the interest of the injured party is extinguished. D. Pardon by the Chief Executive Absolute Pardon An act of grace, proceeding from the power entrusted with the execution of the laws. Exempts the individual from the penalty of the crime he has committed. Conditional Pardon If delivered and accepted, it is a contract between the executive and the convict tat the former will release the latter upon compliance with the condition. One usual condition is ―not again violate any of the penal laws of the country‖. Effects of Pardon of the President Art. 36. Pardon; its effects. – A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. A pardon shall in no case exempt the culprit from the payment of civil indemnity imposed upon him by the sentence. Effects: (1) A pardon shall not restore the right to hold public office or the right of suffrage. Exception: When any or both such rights is or are expressly restored by the terms of the pardon. (2) It shall not exempt the culprit from the payment of the civil indemnity. The pardon cannot make an exception to this rule. Limitations upon the exercise of pardoning power (1) That the power can be exercised only after conviction. a. Thus in applying for pardon, the convict must not appeal the judgment of conviction or the appeal must be abandoned. (2) That such power does not extend to cases of impeachment. (Cristobal v. Labrador). Pardon by the Chief Executive Pardon by the offended party Extinguishes the criminal liability of the offender. Does not extinguish criminal liability. Although it may constitute a bar to the prosecution of the: (1) crimes of seduction, abduction and acts of lasciviousness by the valid marriage of the offended party and the offender; and (2) in adultery and concubinage, by the express or implied pardon by the offended spouse. Cannot include civil liabilities which the offender must pay. The offended party can waive the civil liability which the offender must pay. Conditional or Absolute Cannot be conditional Granted only after the conviction. Pardon should be given before the institution of criminal prosecution. E. Amnesty An act of the sovereign power granting oblivion or general pardon for a past offense. Monsanto v Factoran (1989): 1. Absolute pardon does not ipso facto entitle the convict to reinstatement to the public office forfeited by reason of his conviction. 2. Although pardon restores his eligibility for appointment to that office, the pardoned convict must reapply for a new appointment.
  • 116. CRIMINAL LAW REVIEWER 116 Rarely exercised in favor of a single individual; usually extended in behalf of certain classes of persons who are subject trial but have not yet been convicted. Erases not only the conviction but the crime itself. Difference between Amnesty and Absolute Pardon AMNESTY ABSOLUTE PARDON Blanket pardon to classes of persons, guilty of political offenses Includes any crime and is exercised individually May still be exercised before trial or investigation The person is already convicted Looks backward- it is as if he has committed no offense Looks forward- he is relieved from the consequences of the offense, but rights not restored unless explicitly provided by the terms of the pardon Both do not extinguish civil liability Public act which the court shall take judicial notice of Private act of the President and must be pleaded and proved by the person pardoned Valid only when there is final judgment Valid if given either before or after final judgment The effects of amnesty as well as absolute pardon are not the same. Amnesty erases not only the conviction but also the crime itself. If an offender was convicted for rebellion and he qualified for amnesty, and so he was given an amnesty, then years later he rebelled again and convicted, is he a recidivist? No. Because the amnesty granted to him erased not only the conviction but also the effects of the conviction itself. Suppose, instead of amnesty, what was given was absolute pardon, then years later, the offended was again captured and charged for rebellion, he was convicted, is he a recidivist? Yes. Pardon, although absolute does not erase the effects of conviction. Pardon only excuses the convict from serving the sentence. There is an exception to this and that is when the pardon was granted when the convict had already served the sentence such that there is no more service of sentence to be executed then the pardon shall be understood as intended to erase the effects of the conviction. So if the convict has already served the sentence and in spite of that he was given a pardon that pardon will cover the effects of the crime and therefore, if he will be subsequently convicted for a felony embracing the same title as that crime, he cannot be considered a recidivist, because the pardon wipes out the effects of the crime. But if he was serving sentence when he was pardoned, that pardon will not wipe out the effects of the crime, unless the language of the pardon absolutely relieve the offender of all the effects thereof. Considering that recidivism does not prescribe, no matter how long ago was the first conviction, he shall still be a recidivist.
  • 117. CRIMINAL LAW REVIEWER 117 Republic Act No. 9344 AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER THE DEPARTMENT OF JUSTICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: TITLE I GOVERNING PRINCIPLES CHAPTER 1 TITLE, POLICY AND DEFINITION OF TERMS Section 1. Short Title and Scope. - This Act shall be known as the "Juvenile Justice and Welfare Act of 2006." It shall cover the different stages involving children at risk and children in conflict with the law from prevention to rehabilitation and reintegration. SEC. 2. Declaration of State Policy. - The following State policies shall be observed at all times: (a) The State recognizes the vital role of children and youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. (b) The State shall protect the best interests of the child through measures that will ensure the observance of international standards of child protection, especially those to which the Philippines is a party. Proceedings before any authority shall be conducted in the best interest of the child and in a manner which allows the child to participate and to express himself/herself freely. The participation of children in the program and policy formulation and implementation related to juvenile justice and welfare shall be ensured by the concerned government agency. (c) The State likewise recognizes the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty and exploitation, and other conditions prejudicial to their development. (d) Pursuant to Article 40 of the United Nations Convention on the Rights of the Child, the State recognizes the right of every child alleged as, accused of, adjudged, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, taking into account the child's age and desirability of promoting his/her reintegration. Whenever appropriate and desirable, the State shall adopt measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. It shall ensure that children are dealt with in a manner appropriate to their well-being by providing for, among others, a variety of disposition measures such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programs and other alternatives to institutional care. (e) The administration of the juvenile justice and welfare system shall take into consideration the cultural and religious perspectives of the Filipino people, particularly the indigenous peoples and the Muslims, consistent with the protection of the rights of children belonging to these communities. (f) The State shall apply the principles of restorative justice in all its laws, policies and programs applicable to children in conflict with the law. SEC. 3. Liberal Construction of this Act. - In case of doubt, the interpretation of any of the provisions of this Act, including its implementing rules and regulations (IRRs), shall be construed liberally in favor of the child in conflict with the law. SEC. 4. Definition of Terms. - The following terms as used in this Act shall be defined as follows: (a) "Bail" refers to the security given for the release of the person in custody of the law, furnished by him/her or a bondsman, to guarantee his/her appearance before any court. Bail may be given in the form of corporate security, property bond, cash deposit, or recognizance. (b) "Best Interest of the Child" refers to the totality of the circumstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child's physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. (e) "Child" refers to a person under the age of eighteen (18) years. (d) "Child at Risk" refers to a child who is vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances, such as, but not limited to, the following: (1) being abused by any person through sexual, physical, psychological, mental, economic or any other means and the parents or guardian refuse, are unwilling, or unable to provide protection for the child;
  • 118. CRIMINAL LAW REVIEWER 118 (2) being exploited including sexually or economically; (3) being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be found; (4) coming from a dysfunctional or broken family or without a parent or guardian; (5) being out of school; (6) being a streetchild; (7) being a member of a gang; (8) living in a community with a high level of criminality or drug abuse; and (9) living in situations of armed conflict. (e) "Child in Conflict with the Law" refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (f) "Community-based Programs" refers to the programs provided in a community setting developed for purposes of intervention and diversion, as well as rehabilitation of the child in conflict with the law, for reintegration into his/her family and/or community. (g) "Court" refers to a family court or, in places where there are no family courts, any regional trial court. (h) "Deprivation of Liberty" refers to any form of detention or imprisonment, or to the placement of a child in conflict with the law in a public or private custodial setting, from which the child in conflict with the law is not permitted to leave at will by order of any judicial or administrative authority. (i) "Diversion" refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. (j) "Diversion Program" refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. (k) "Initial Contact With-the Child" refers to the apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no necessity to place the child alleged to be in conflict with the law under immediate custody. (I) "Intervention" refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. (m) "Juvenile Justice and Welfare System" refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. (n) "Law Enforcement Officer" refers to the person in authority or his/her agent as defined in Article 152 of the Revised Penal Code, including a barangay tanod. (0) "Offense" refers to any act or omission whether punishable under special laws or the Revised Penal Code, as amended. (p) "Recognizance" refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court of the child in conflict with the law, when required. (q) "Restorative Justice" refers to a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. It seeks to obtain reparation for the victim; reconciliation of the offender, the offended and the community; and reassurance to the offender that he/she can be reintegrated into society. It also enhances public safety by activating the offender, the victim and the community in prevention strategies. (r) "Status Offenses" refers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts. These shall include curfew violations; truancy, parental disobedience and the like. (s) "Youth Detention Home" refers to a 24- hour child-caring institution managed by accredited local government units (LGUs) and licensed and/or accredited nongovernment organizations (NGOs) providing short-term residential care for children in conflict with the law who are awaiting court disposition of their cases or transfer to other agencies or jurisdiction. (t) "Youth Rehabilitation Center" refers to a 24-hour residential care facility managed by the Department of Social Welfare and Development (DSWD), LGUs, licensed and/or accredited NGOs monitored by the DSWD, which provides care, treatment and rehabilitation services for children in conflict with the law. Rehabilitation services are provided under the guidance of a trained staff where residents are cared
  • 119. CRIMINAL LAW REVIEWER 119 for under a structured therapeutic environment with the end view of reintegrating them into their families and communities as socially functioning individuals. Physical mobility of residents of said centers may be restricted pending court disposition of the charges against them. (u) "Victimless Crimes" refers to offenses where there is no private offended party. CHAPTER 2 PRINCIPLES IN THE ADMINISTRATION OF JUVENILE JUSTICE AND WELFARE SEC. 5. Rights of the Child in Conflict with the Law. - Every child in conflict with the law shall have the following rights, including but not limited to: (a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; (b) the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release; (c) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment being a disposition of last resort, and which shall be for the shortest appropriate period of time; (d) the right to be treated with humanity and respect, for the inherent dignity of the person, and in a manner which takes into account the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from adult offenders at all times. No child shall be detained together with adult offenders. He/She shall be conveyed separately to or from court. He/She shall await hearing of his/her own case in a separate holding area. A child in conflict with the law shall have the right to maintain contact with his/her family through correspondence and visits, save in exceptional circumstances; (e) the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action; (f) the right to bail and recognizance, in appropriate cases; (g) the right to testify as a witness in hid/her own behalf under the rule on examination of a child witness; (h) the right to have his/her privacy respected fully at all stages of the proceedings; (i) the right to diversion if he/she is qualified and voluntarily avails of the same; (j) the right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative justice; (k) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty; (I) in general, the right to automatic suspension of sentence; (m) the right to probation as an alternative to imprisonment, if qualified under the Probation Law; (n) the right to be free from liability for perjury, concealment or misrepresentation; and (o) other rights as provided for under existing laws, rules and regulations. The State further adopts the provisions of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice or "Beijing Rules", United Nations Guidelines for the Prevention of Juvenile Delinquency or the "Riyadh Guidelines", and the United Nations Rules for the Protection of Juveniles Deprived of Liberty. SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. SEC. 7. Determination ofAge. - The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The age of a child may be determined from the child's birth certificate, baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor. Any person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court may file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all interested parties.
  • 120. CRIMINAL LAW REVIEWER 120 If a case has been fiied against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion to determine the age of the child in the same court where the case is pending. Pending hearing on the said motion, proceedings on the main case shall be suspended. In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law. TITLE II STRUCTURES IN THE ADMINISTRATION OF JUVENILE JUSTICE AND WELFARE SEC. 8. Juvenile Justice and Welfare Council (JJWC). - A Juvenile Justice and Welfare Council (JJWC) is hereby created and attached to the Department of Justice and placed under its administrative supervision. The JJWC shall be chaired by an undersecretary of the Department of Social Welfare and Development. It shall ensure the effective implementation of this Act and coordination among the following agencies: (a) Council for the Welfare of Children (CWC); (b) Department of Education (DepEd); (c) Department of the Interior and Local Government (DILG); (d) Public Attorney's Office (PAO); (e) Bureau of Corrections (BUCOR); (f) Parole and Probation Administration (PPA) (g) National Bureau of Investigation (NBI); (h) Philippine National Police (PNP);. (i) Bureau of Jail Management and Penology (BJMP); (i) Commission on Human Rights (CHR); (k) Technical Education and Skills Development Authority (TESDA); (l) National Youth Commission (NYC); and (m) Other institutions focused on juvenile justice and intervention programs. The JJWC shall be composed of representatives, whose ranks shall not be lower than director, to be designated by the concerned heads of the following departments or agencies: (a) Department of Justice (DOJ); (b) Department of Social Welfare and Development (DSWD); (c) Council for the Welfare of Children (CWC) (d) Department of Education (DepEd); (e) Department of the Interior and Local Government (DILG) (f) Commission on Human Rights (CHR); (g) National Youth Commission (NYC); and (h) Two (2) representatives from NGOs, one to be designated by the Secretary of Justice and the other to be designated by the Secretary of Social Welfare and Development. The JJWC shall convene within fifteen (15) days from the effectivity of this Act. The Secretary of Justice and the Secretary of Social Welfare and Development shall determine the organizational structure and staffing pattern of the JJWC. The JJWC shall coordinate with the Office of the Court Administrator and the Philippine Judicial Academy to ensure the realization of its mandate and the proper discharge of its duties and functions, as herein provided. SEC. 9. Duties and Functions of the JJWC. - The JJWC shall have the following duties and functions: (a) To oversee the implementation of this Act; (b) To advise the President on all matters and policies relating to juvenile justice and welfare; (c) To assist the concerned agencies in the review and redrafting of existing policies/regulations or in the formulation of new ones in line with the provisions of this Act; (d) To periodically develop a comprehensive 3 to 5-year national juvenile intervention program, with the participation of government agencies concerned, NGOs and youth organizations; (e) To coordinate the implementation of the juvenile intervention programs and activities by national government agencies and other activities which may have an important bearing on the success of the entire national juvenile intervention program. All programs relating to juvenile justice and welfare shall be adopted in consultation with the JJWC; (f) To formulate and recommend policies and strategies in consultation with children for the prevention of juvenile delinquency and the administration of justice, as well as for the treatment and rehabilitation of the children in conflict with the law; (g) To collect relevant information and conduct continuing research and support evaluations and studies on all matters relating to juvenile justice and welfare, such as but not limited to: (1) the performance and results achieved by juvenile intervention programs and by activities of the local government units and other government agencies; (2) the periodic trends, problems and causes of juvenile delinquency and crimes; and (3) the particular needs of children in conflict with the law in custody. The data gathered shall be used by the JJWC in the improvement of the administration of juvenile justice and welfare system. The JJWC shall set up a mechanism to ensure that children are involved in research and policy development. (h) Through duly designated persons and with the assistance of the agencies provided in the preceding section, to conduct regular inspections in detention and rehabilitation
  • 121. CRIMINAL LAW REVIEWER 121 facilities and to undertake spot inspections on their own initiative in order to check compliance with the standards provided herein and to make the necessary recommendations to appropriate agencies; (i) To initiate and coordinate the conduct of trainings for the personnel of the agencies involved in the administration of the juvenile justice and welfare system and the juvenile intervention program; (j) To submit an annual report to the President on the implementation of this Act; and (k) To perform such other functions as may be necessary to implement the provisions of this Act. SEC. 10. Policies and Procedures on Juvenile Justice and Welfare. - All government agencies enumerated in Section 8 shall, with the assistance of the JJWC and within one (1) year from the effectivity of this Act, draft policies and procedures consistent with the standards set in the law. These policies and procedures shall be modified accordingly in consultation with the JJWC upon the completion of the national juvenile intervention program as provided under Section 9 (d). SEC. 11. Child Rights Center (CRC). - The existing Child Rights Center of the Commission on Human Rights shall ensure that the status, rights and interests of children are upheld in accordance with the Constitution and international instruments on human rights. The CHR shall strengthen the monitoring of government compliance of all treaty obligations, including the timely and regular submission of reports before the treaty bodies, as well as the implementation and dissemination of recommendations and conclusions by government agencies as well as NGOs and civil society. TITLE III PREVENTION OF JUVENILE DELINQUENCY CHAPTER 1 THE ROLE OF THE DIFFERENT SECTORS SEC. 12. The Family. - The family shall be responsible for the primary nurturing and rearing of children which is critical in delinquency prevention. As far as practicable and in accordance with the procedures of this Act, a child in conflict with the law shall be maintained in his/her family. SEC. 13. The Educational System. - Educational institutions shall work together with families, community organizations and agencies in the prevention of juvenile delinquency and in the rehabilitation and reintegration of child in conflict with the law. Schools shall provide adequate, necessary and individualized educational schemes for children manifesting difficult behavior and children in conflict with the law. In cases where children in conflict with the law are taken into custody or detained in rehabilitation centers, they should be provided the opportunity to continue learning under an alternative learning system with basic literacy program or non- formal education accreditation equivalency system. SEC. 14. The Role of the Mass Media. - The mass media shall play an active role in the promotion of child rights, and delinquency prevention by relaying consistent messages through a balanced approach. Media practitioners shall, therefore, have the duty to maintain the highest critical and professional standards in reporting and covering cases of children in conflict with the law. In all publicity concerning children, the best interest of the child should be the primordial and paramount concern. Any undue, inappropriate and sensationalized publicity of any case involving a child in conflict with the law is hereby declared a violation of the child's rights. SEC. 15. Establishment and Strengthening of Local Councils for the Protection of Children. - Local Councils for the Protection of Children (LCPC) shall be established in all levels of local government, and where they have already been established, they shall be strengthened within one (1) year from the effectivity of this Act. Membership in the LCPC shall be chosen from among the responsible members of the community, including a representative from the youth sector, as well as representatives from government and private agencies concerned with the welfare of children. The local council shall serve as the primary agency to coordinate with and assist the LGU concerned for the adoption of a comprehensive plan on delinquency prevention, and to oversee its proper implementation. One percent (1%) of the internal revenue allotment of barangays, municipalities and cities shall be allocated for the strengthening and implementation of the programs of the LCPC: Provided, That the disbursement of the fund shall be made by the LGU concerned. SEC. 16. Appointment of Local Social Welfare and Development Officer. - All LGUs shall appoint a duly licensed social worker as its local social welfare and development officer tasked to assist children in conflict with the law. SEC. 17. The Sangguniang Kabataan. - The Sangguniang Kabataan (SK) shall coordinate with the LCPC in the formulation and implementation of juvenile intervention and diversion programs in the community. CHAPTER 2 COMPREHENSIVE JUVENILE INTERVENTION PROGRAM SEC. 18. Development of a Comprehensive Juvenile Intervention Program. - A Comprehensive juvenile intervention program covering at least a 3- year period shall be instituted in LGUs from the barangay to the provincial level.
  • 122. CRIMINAL LAW REVIEWER 122 The LGUs shall set aside an amount necessary to implement their respective juvenile intervention programs in their annual budget. The LGUs, in coordination with the LCPC, shall call on all sectors concerned, particularly the child- focused institutions, NGOs, people's organizations, educational institutions and government agencies involved in delinquency prevention to participate in the planning process and implementation of juvenile intervention programs. Such programs shall be implemented consistent with the national program formulated and designed by the JJWC. The implementation of the comprehensive juvenile intervention program shall be reviewed and assessed annually by the LGUs in coordination with the LCPC. Results of the assessment shall be submitted by the provincial and city governments to the JJWC not later than March 30 of every year. SEC. 19. Community-based Programs on Juvenile Justice and Welfare. - Community-based programs on juvenile justice and welfare shall be instituted by the LGUs through the LCPC, school, youth organizations and other concerned agencies. The LGUs shall provide community-based services which respond to the special needs, problems, interests and concerns of children and which offer appropriate counseling and guidance to them and their families. These programs shall consist of three levels: (a) Primary intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending; (b) Secondary intervention includes measures to assist children at risk; and (c) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other measures to prevent re-offending. TITLE IV TREATMENT OF CHILDREN BELOW THE AGE OF CRIMINAL RESPONSIBILITY SEC. 20. Children Below the Age of Criminal Responsibility. - If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child's nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered nongovernmental or religious organization; a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); a local social welfare and development officer; or when and where appropriate, the DSWD. If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise ,known as "The Child and Youth Welfare Code". TITLE V JUVENILE JUSTICE AND WELFARE SYSTEM CHAPTER I INITIAL CONTACT WITH THE CHILD SEC. 21. Procedure for Taking the Child into Custody. - From the moment a child is taken into custody, the law enforcement officer shall: (a) Explain to the child in simple language and in a dialect that he/she can understand why he/she is being placed under custody and the offense that he/she allegedly committed; (b) Inform the child of the reason for such custody and advise the child of his/her constitutional rights in a language or dialect understood by him/her; (e) Properly identify himself/herself and present proper identification to the child; (d) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on the child in conflict with the law; (e) Avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed; (f) Refrain from subjecting the child in conflict with the law to greater restraint than is necessary for his/her apprehension; (g) Avoid violence or unnecessary force; (h) Determine the age of the child pursuant to Section 7 of this Act; (i) Immediately but not later than eight (8) hours after apprehension, turn over custody of the child to the Social Welfare and Development Office or other accredited NGOs, and notify the child's apprehension. The social welfare and development officer shall explain to the child and the child's parents/guardians the consequences of the child's act with a view towards counseling and rehabilitation, diversion from the criminal justice system, and reparation, if appropriate; (j) Take the child immediately to the proper medical and health officer for a thorough physical and mental examination. The examination results shall be kept confidential unless otherwise ordered by the Family Court. Whenever the medical treatment is required, steps shall be immediately undertaken to provide the same; (k) Ensure that should detention of the child in conflict with the law be necessary, the child shall be secured in quarters separate
  • 123. CRIMINAL LAW REVIEWER 123 from that of the opposite sex and adult offenders; (l) Record the following in the initial investigation: 1. Whether handcuffs or other instruments of restraint were used, and if so, the reason for such; 2. That the parents or guardian of a child, the DSWD, and the PA0 have been informed of the apprehension and the details thereof; and 3. The exhaustion of measures to determine the age of a child and the precise details of the physical and medical examination or the failure to submit a child to such examination; and (m) Ensure that all statements signed by the child during investigation shall be witnessed by the child's parents or guardian, social worker, or legal counsel in attendance who shall affix his/her signature to the said statement. A child in conflict with the law shall only be searched by a law enforcement officer of the same gender and shall not be locked up in a detention cell. SEC. 22. Duties During Initial Investigation. - The law enforcement officer shall, in his/her investigation, determine where the case involving the child in conflict with the law should be referred. The taking of the statement of the child shall be conducted in the presence of the following: (1) child's counsel of choice or in the absence thereof, a lawyer from the Public Attorney's Office; (2) the child's parents, guardian, or nearest relative, as the case may be; and (3) the local social welfare and development officer. In the absence of the child's parents, guardian, or nearest relative, and the local social welfare and development officer, the investigation shall be conducted in the presence of a representative of an NGO, religious group, or member of the BCPC. After the initial investigation, the local social worker conducting the same may do either of the following: (a) Proceed in accordance with Section 20 if the child is fifteen (15) years or below or above fifteen (15) but below eighteen (18) years old, who acted without discernment; and (b) If the child is above fifteen (15) years old but below eighteen (18) and who acted with discernment, proceed to diversion under the following chapter. CHAPTER 2 DIVERSION SEC. 23. System of Diversion. - Children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the conditions herein provided: (a) Where the imposable penalty for the crime committee is not more than six (6) years imprisonment, the law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other members of the LCPC shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and his/her family shall be present in these activities. (b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the local social welfare and development officer shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC; (c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. SEC. 24. Stages Where Diversion May be Conducted. - Diversion may be conducted at the Katarungang Pambarangay, the police investigation or the inquest or preliminary investigation stage and at all 1evels and phases of the proceedings including judicial level. SEC. 25. Conferencing, Mediation and Conciliation. - A child in conflict with law may undergo conferencing, mediation or conciliation outside the criminal justice system or prior to his entry into said system. A contract of diversion may be entered into during such conferencing, mediation or conciliation proceedings. SEC. 26. Contract of Diversion. - If during the conferencing, mediation or conciliation, the child voluntarily admits the commission of the act, a diversion program shall be developed when appropriate and desirable as determined under Section 30. Such admission shall not be used against the child in any subsequent judicial, quasi-judicial or administrative proceedings. The diversion program shall be effective and binding if accepted by the parties concerned. The acceptance shall be in writing and signed by the parties concerned and the appropriate authorities. The local social welfare and development officer shall supervise the implementation of the diversion program. The diversion proceedings shall be completed within forty-five (45) days. The period of prescription of the offense shall be suspended until the completion of the diversion proceedings but not to exceed forty- five (45) days. The child shall present himself/herself to the competent authorities that imposed the diversion
  • 124. CRIMINAL LAW REVIEWER 124 program at least once a month for reporting and evaluation of the effectiveness of the program. Failure to comply with the terms and conditions of the contract of diversion, as certified by the local social welfare and development officer, shall give the offended party the option to institute the appropriate legal action. The period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not exceeding a period of two (2) years. SEC. 27. Duty of the Punong Barangay When There is No Diversion. - If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Punong Barangay handling the case shall, within three (3) days from determination of the absence of jurisdiction over the case or termination of the diversion proceedings, as the case may be, forward the records of the case of the child to the law enforcement officer, prosecutor or the appropriate court, as the case may be. Upon the issuance of the corresponding document, certifying to the fact that no agreement has been reached by the parties, the case shall be filed according to the regular process. SEC. 28. Duty of the Law Enforcement Officer When There is No Diversion. - If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Women and Children Protection Desk of the PNP, or other law enforcement officer handling the case of the child under custody, to the prosecutor or judge concerned for the conduct of inquest and/or preliminary investigation to determine whether or not the child should remain under custody and correspondingly charged in court. The document transmitting said records shall display the word "CHILD" in bold letters. SEC. 29. Factors in Determining Diversion Program. - In determining whether diversion is appropriate and desirable, the following factors shall be taken into consideration: (a) The nature and circumstances of the offense charged; (b) The frequency and the severity of the act; (c) The circumstances of the child (e.g. age, maturity, intelligence, etc.); (d) The influence of the family and environment on the growth of the child; (e) The reparation of injury to the victim; (f) The weight of the evidence against the child; (g) The safety of the community; and (h) The best interest of the child. SEC. 30. Formulation of the Diversion Program. - In formulating a diversion program, the individual characteristics and the peculiar circumstances of the child in conflict with the law shall be used to formulate an individualized treatment. The following factors shall be considered in formulating a diversion program for the child: (a) The child's feelings of remorse for the offense he/she committed; (b) The parents' or legal guardians' ability to guide and supervise the child; (c) The victim's view about the propriety of the measures to be imposed; and (d) The availability of community-based programs for rehabilitation and reintegration of the child. SEC. 31. Kinds of Diversion Programs. - The diversion program shall include adequate socio- cultural and psychological responses and services for the child. At the different stages where diversion may be resorted to, the following diversion programs may be agreed upon, such as, but not limited to: (a) At the level of the Punong Barangay: (1) Restitution of property; (2) Reparation of the damage caused; (3) Indemnification for consequential damages; (4) Written or oral apology; (5) Care, guidance and supervision orders; (6) Counseling for the child in conflict with the law and the child's family; (7)Attendance in trainings, seminars and lectures on: (i) anger management skills; (ii) problem solving and/or conflict resolution skills; (iii) values formation; and (iv) other skills which will aid the child in dealing with situations which can lead to repetition of the offense; (8) Participation in available community-based programs, including community service; or (9) Participation in education, vocation and life skills programs. (b) At the level of the law enforcement officer and the prosecutor: (1) Diversion programs specified under paragraphs (a)(1) to (a)(9) herein; and (2) Confiscation and forfeiture of the proceeds or instruments of the crime; (c) At the level of the appropriate court: (1) Diversion programs specified under paragraphs(a)and (b) above; (2) Written or oral reprimand or citation; (3) Fine: (4) Payment of the cost of the proceedings; or (5) Institutional care and custody. CHAPTER 3 PROSECUTION
  • 125. CRIMINAL LAW REVIEWER 125 SEC. 32. Duty of the Prosecutor's Office. - There shall be a specially trained prosecutor to conduct inquest, preliminary investigation and prosecution of cases involving a child in conflict with the law. If there is an allegation of torture or ill-treatment of a child in conflict with the law during arrest or detention, it shall be the duty of the prosecutor to investigate the same. SEC. 33. Preliminary Investigation and Filing of Information. - The prosecutor shall conduct a preliminary investigation in the following instances: (a) when the child in conflict with the law does not qualify for diversion: (b) when the child, his/her parents or guardian does not agree to diversion as specified in Sections 27 and 28; and (c) when considering the assessment and recommendation of the social worker, the prosecutor determines that diversion is not appropriate for the child in conflict with the law. Upon serving the subpoena and the affidavit of complaint, the prosecutor shall notify the Public Attorney's Office of such service, as well as the personal information, and place of detention of the child in conflict with the law. Upon determination of probable cause by the prosecutor, the information against the child shall be filed before the Family Court within forty-five (45) days from the start of the preliminary investigation. CHAPTER 4 COURT PROCEEDINGS SEC. 34. Bail. - For purposes of recommending the amount of bail, the privileged mitigating circumstance of minority shall be considered. SEC. 35. Release on Recognizance. - Where a child is detained, the court shall order: (a) the release of the minor on recognizance to his/her parents and other suitable person; (b) the release of the child in conflict with the law on bail; or (c) the transfer of the minor to a youth detention home/youth rehabilitation center. The court shall not order the detention of a child in a jail pending trial or hearing of his/her case. SEC. 36. Detention of the Child Pending Trial. - Children detained pending trial may be released on bail or recognizance as provided for under Sections 34 and 35 under this Act. In all other cases and whenever possible, detention pending trial may be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home. Institutionalization or detention of the child pending trial shall be used only as a measure of last resort and for the shortest possible period of time. Whenever detention is necessary, a child will always be detained in youth detention homes established by local governments, pursuant to Section 8 of the Family Courts Act, in the city or municipality where the child resides. In the absence of a youth detention home, the child in conflict with the law may be committed to the care of the DSWD or a local rehabilitation center recognized by the government in the province, city or municipality within the jurisdiction of the court. The center or agency concerned shall be responsible for the child's appearance in court whenever required. SEC. 37. Diversion Measures. - Where the maximum penalty imposed by law for the offense with which the child in conflict with the law is charged is imprisonment of not more than twelve (12) years, regardless of the fine or fine alone regardless of the amount, and before arraignment of the child in conflict with the law, the court shall determine whether or not diversion is appropriate. SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various chcumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. SEC. 39. Discharge of the Child in Conflict with the Law. - Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment. If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to
  • 126. CRIMINAL LAW REVIEWER 126 order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty- one (21) years. SEC. 41. Credit in Service of Sentence. - The child in conflict with the law shall be credited in the services of his/her sentence with the full time spent in actual commitment and detention under this Act. SEC. 42. Probation as an Alternative to Imprisonment. - The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into account the best interest of the child. For this purpose, Section 4 of Presidential Decree No. 968, otherwise known as the "Probation Law of 1976", is hereby amended accordingly. CHAPTER 5 CONFIDENTIALITY OF RECORDS AND PROCEEDINGS SEC. 43. Confedentiality of Records and Proceedings. - All records and proceedings involving children in conflict with the law from initial contact until final disposition of the case shall be considered privileged and confidential. The public shall be excluded during the proceedings and the records shall not be disclosed directly or indirectly to anyone by any of the parties or the participants in the proceedings for any purpose whatsoever, except to determine if the child in conflict with the law may have his/hes sentence suspended or if he/she may be granted probation under the Probation Law, or to enforce the civil liability imposed in the criminal action. The component authorities shall undertake all measures to protect this confidentiality of proceedings, including non-disclosure of records to the media, maintaining a separate police blotter for cases involving children in conflict with the law and adopting a system of coding to conceal material information which will lead to the child's identity. Records of a child in conflict with the law shall not be used in subsequent proceedings for cases involving the same offender as an adult, except when beneficial for the offender and upon his/her written consent. A person who has been in conflict with the law as a child shall not be held under any provision of law, to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him/her for any purpose. TITLE VI REHABILITATION AND REINTEGRATION SEC. 44. Objective of Rehabilitation and Reintegration. - The objective of rehabilitation and reintegration of children in conflict with the law is to provide them with interventions, approaches and strategies that will enable them to improve their social functioning with the end goal of reintegration to their families and as productive members of their communities. SEC. 45. Court Order Required. - No child shall be received in any rehabilitation or training facility without a valid order issued by the court after a hearing for the purpose. The details of this order shall be immediately entered in a register exclusively for children in conflict with the law. No child shall be admitted in any facility where there is no such register. SEC. 46, Separate Facilities from Adults. - In all rehabilitation or training facilities, it shall be mandatory that children shall be separated from adults unless they are members of the same family. Under no other circumstance shall a child in conflict with the law be placed in the same confinement as adults. The rehabilitation, training or confinement area of children in conflict with the law shall provide a home environment where children in conflict with the law can be provided with quality counseling and treatment. SEC. 47. Female Children. - Female children in conflict with the law placed in an institution shall be given special attention as to their personal needs and problems. They shall be handled by female doctors, correction officers and social workers, and shall be accommodated separately from male children in conflict with the law. SEC. 48. Gender-Sensitivity Training. - No personnel of rehabilitation and training facilities shall handle children in conflict with the law without having undergone gender sensitivity training. SEC. 49. Establishment of Youth Detention Homes. - The LGUs shall set aside an amount to build youth detention homes as mandated by the Family Courts Act. Youth detention homes may also be established by private and NGOs licensed and accredited by the DSWD, in consultation with the JJWC. SEC. 50. Care and Maintenance of the Child in Conflict with the Law. - The expenses for the care and maintenance of a child in conflict with the law under institutional care shall be borne by his/her parents or those persons liable to support him/her: Provided, That in case his/her parents or those persons liable to support him/her cannot pay all or part of said expenses, the municipality where the offense was committed shall pay one-third (1/3) of said expenses or part thereof; the province to which the municipality belongs shall pay one-third (1/3) and the remaining one-third (1/3) shall be borne by the national government. Chartered cities shall pay two-thirds (2/3) of said expenses; and in case a chartered city cannot pay said expenses, part of the internal revenue allotments applicable to the unpaid portion shall be withheld and applied to the settlement of said obligations: Provided, further, That in the event that the child in conflict with the law is not a resident of the municipality/city where the offense was committed, the court, upon its determination, may require the city/municipality where the child in conflict with the law resides to shoulder the cost.
  • 127. CRIMINAL LAW REVIEWER 127 All city and provincial governments must exert effort for the immediate establishment of local detention homes for children in conflict with the law. SEC. 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. - A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD. SEC. 52. Rehabilitation of Children in Conflict with the Law. - Children in conflict with the law, whose sentences are suspended may, upon order of the court, undergo any or a combination of disposition measures best suited to the rehabilitation and welfare of the child as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. If the community-based rehabilitation is availed of by a child in conflict with the law, he/she shall be released to parents, guardians, relatives or any other responsible person in the community. Under the supervision and guidance of the local social welfare and development officer, and in coordination with his/her parents/guardian, the child in conflict with the law shall participate in community-based programs, which shall include, but not limited to: (1) Competency and life skills development; (2) Socio-cultural and recreational activities; (3) Community volunteer projects; (4) Leadership training; (5) Social services; (6) Homelife services; (7) Health services; . (8) Spiritual enrichment; and (9) Community and family welfare services. In accordance therewith, the family of the child in conflict with the law shall endeavor to actively participate in the community-based rehabilitation. Based on the progress of the youth in the community, a final report will be forwarded by the local social welfare and development officer to the court for final disposition of the case. If the community-based programs are provided as diversion measures under Chapter II, Title V, the programs enumerated above shall be made available to the child in conflict with the law. SEC. 53. Youth Rehabilitation Center. - The youth rehabilitation center shall provide 24-hour group care, treatment and rehabilitation services under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end view of reintegrating them in their families and communities as socially functioning individuals. A quarterly report shall be submitted by the center to the proper court on the progress of the children in conflict with the law. Based on the progress of the youth in the center, a final report will be forwarded to the court for final disposition of the case. The DSWD shall establish youth rehabilitation centers in each region of the country. SEC. 54. Objectives of Community Based Programs. - The objectives of community-based programs are as follows: (a) Prevent disruption in the education or means of livelihood of the child in conflict with the law in case he/she is studying, working or attending vocational learning institutions; (b) Prevent separation of the child in conflict with the law from his/her parents/guardians to maintain the support system fostered by their relationship and to create greater awareness of their mutual and reciprocal responsibilities; (c) Facilitate the rehabilitation and mainstreaming of the child in conflict with the law and encourage community support and involvement; and (d) Minimize the stigma that attaches to the child in conflict with the law by preventing jail detention. SEC. 55. Criteria of Community-Based Programs. - Every LGU shall establish community-based programs that will focus on the rehabilitation and reintegration of the child. All programs shall meet the criteria to be established by the JJWC which shall take into account the purpose of the program, the need for the consent of the child and his/her parents or legal guardians, and the participation of the child-centered agencies whether public or private. SEC. 56. After-Care Support Services for Children in Conflict with the Law. - Children in conflict with the law whose cases have been dismissed by the proper court because of good behavior as per recommendation of the DSWD social worker and/or any accredited NGO youth rehabilitation center shall be provided after-care services by the local social welfare and development officer for a period of at least six (6) months. The service includes counseling and other community-based services designed to facilitate social reintegration, prevent re-offending and make the children productive members of the community. TITLE VII GENERAL PROVISIONS CHAPTER 1 EXEMPTING PROVISIONS SEC. 57. Status Offenees. - Any conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child. SEC. 58. Offenses Not Applicable to Children. - Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of vagrancy and prostitution under Section 202 of the Revised
  • 128. CRIMINAL LAW REVIEWER 128 Penal Code, of mendicancy under Presidential Decree No. 1563, and sniffing of rugby under Presidential Decree No. 1619, such prosecution being inconsistent with the United Nations Convention on the Rights of the Child: Provided, That said persons shall undergo appropriate counseling and treatment program. SEC. 59. Exemption from the Application of Death Penalty. - The provisions of the Revised Penal Code, as amended, Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and other special laws notwithstanding, no death penalty shall be imposed upon children in conflict with the law. CHAPTER 2 PROHIBITED ACTS SEC. 60. Prohibition Against Labeling and Shaming. - In the conduct of the proceedings beginning from the initial contact with the child, the competent authorities must refrain from branding or labeling children as young criminals, juvenile delinquents, prostitutes or attaching to them in any manner any other derogatory names. Likewise, no discriminatory remarks and practices shall be allowed particularly with respect to the child's class or ethnic origin. SEC. 61. Other Prohibited Acts. - The following and any other similar acts shall be considered prejudicial and detrimental to the psychological, emotional, social, spiritual, moral and physical health and well- being of the child in conflict with the law and therefore, prohibited: (a) Employment of threats of whatever kind and nature; (b) Employment of abusive, coercive and punitive measures such as cursing, beating, stripping, and solitary confinement; (c) Employment of degrading, inhuman end cruel forms of punishment such as shaving the heads, pouring irritating, corrosive or harmful substances over the body of the child in conflict with the law, or forcing him/her to walk around the community wearing signs which embarrass, humiliate, and degrade his/her personality and dignity; and (d) Compelling the child to perform involuntary servitude in any and all forms under any and all instances. CHAPTER 3 PENAL PROVISION SEC. 62. Violation of the Provisions of this Act or Rules or Regulations in General. - Any person who violates any provision of this Act or any rule or regulation promulgated in accordance thereof shall, upon conviction for each act or omission, be punished by a fine of not less than Twenty thousand pesos (P20,000.00) but not more than Fifty thousand pesos (P50,000.00) or suffer imprisonment of not less than eight (8) years but not more than ten (10) years, or both such fine and imprisonment at the discretion of the court, unless a higher penalty is provided for in the Revised Penal Code or special laws. If the offender is a public officer or employee, he/she shall, in addition to such fine and/or imprisonment, be held administratively liable and shall suffer the penalty of perpetual absolute disqualification. CHAPTER 4 APPROPRIATION PROVISION SEC. 63. Appropriations. - The amount necessary to carry out the initial implementation of this Act shall be charged to the Office of the President. Thereafter, such sums as may be necessary for the continued implementation of this Act shall be included in the succeeding General Appropriations Act. An initial amount of Fifty million pesos (P50,000,000.00) for the purpose of setting up the JJWC shall be taken from the proceeds of the Philippine Charity Sweepstakes Office. TITLE VIII TRANSITORY PROVISIONS SEC. 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. - Upon effectivity of this Act, cases of children fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer. Such officer, upon thorough assessment of the child, shall determine whether to release the child to the custody of his/her parents, or refer the child to prevention programs as provided under this Act. Those with suspended sentences and undergoing rehabilitation at the youth rehabilitation center shall likewise be released, unless it is contrary to the best interest of the child. SEC. 65. Children Detained Pending Dial. - If the child is detained pending trial, the Family Court shall also determine whether or not continued detention is necessary and, if not, determine appropriate alternatives for detention. If detention is necessary and he/she is detained with adults, the court shall immediately order the transfer of the child to a youth detention home. SEC. 66. Inventory of "Locked-up" and Detained Children in Conflict with the Law. - The PNP, the BJMP and the BUCOR are hereby directed to submit to the JJWC, within ninety (90) days from the effectivity of this Act, an inventory of all children in conflict with the law under their custody. SEC. 67. Children Who Reach the Age of Eighteen (18) Years Pending Diversion and Court Proceedings. - If a child reaches the age of eighteen (18) years pending diversion and court proceedings, the appropriate diversion authority in consultation with the local social welfare and development officer or the Family Court in consultation with the Social Services and Counseling Division (SSCD) of the Supreme Court, as the case may be, shall determine the appropriate disposition. In case the appropriate
  • 129. CRIMINAL LAW REVIEWER 129 court executes the judgment of conviction, and unless the child in conflict the law has already availed of probation under Presidential Decree No. 603 or other similar laws, the child may apply for probation if qualified under the provisions of the Probation Law. SEC. 68. Children Who Have Been Convicted and are Serving Sentence. - Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. They shall be entitled to appropriate dispositions provided under this Act and their sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified under this Act or other applicable law. TITLE IX FINAL PROVISIONS SEC. 69. Rule Making Power. - The JJWC shall issue the IRRs for the implementation of the provisions of this act within ninety (90) days from the effectivity thereof. SEC. 70. Separability Clause. - If, for any reason, any section or provision of this Act is declared unconstitutional or invalid by the Supreme Court, the other sections or provisions hereof not dfected by such declaration shall remain in force and effect. SEC. 71. Repealing Clause. - All existing laws, orders, decrees, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. SEC. 72. Effectivity. - This Act shall take effect after fifteen (15) days from its publication in at least two (2) national newspapers of general circulation. REPUBLIC ACT NO. 9165 June 7, 2002 AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress Section 1. Short Title. – This Act shall be known and cited as the "Comprehensive Dangerous Drugs Act of 2002". Section 2. Declaration of Policy. – It is the policy of the State to safeguard the integrity of its territory and the well-being of its citizenry particularly the youth, from the harmful effects of dangerous drugs on their physical and mental well-being, and to defend the same against acts or omissions detrimental to their development and preservation. In view of the foregoing, the State needs to enhance further the efficacy of the law against dangerous drugs, it being one of today's more serious social ills. Toward this end, the government shall pursue an intensive and unrelenting campaign against the trafficking and use of dangerous drugs and other similar substances through an integrated system of planning, implementation and enforcement of anti- drug abuse policies, programs, and projects. The government shall however aim to achieve a balance in the national drug control program so that people with legitimate medical needs are not prevented from being treated with adequate amounts of appropriate medications, which include the use of dangerous drugs. It is further declared the policy of the State to provide effective mechanisms or measures to re- integrate into society individuals who have fallen victims to drug abuse or dangerous drug dependence through sustainable programs of treatment and rehabilitation. ARTICLE I Definition of terms Section 3. Definitions. As used in this Act, the following terms shall mean: (a) Administer. – Any act of introducing any dangerous drug into the body of any person, with or without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a person in administering a dangerous drug to himself/herself unless administered by a duly licensed practitioner for purposes of medication. (b) Board. - Refers to the Dangerous Drugs Board under Section 77, Article IX of this Act. (c) Centers. - Any of the treatment and rehabilitation centers for drug dependents referred to in Section 34, Article VIII of this Act.
  • 130. CRIMINAL LAW REVIEWER 130 (d) Chemical Diversion. – The sale, distribution, supply or transport of legitimately imported, in- transit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and shall include packaging, repackaging, labeling, relabeling or concealment of such transaction through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail fraud. (e) Clandestine Laboratory. – Any facility used for the illegal manufacture of any dangerous drug and/or controlled precursor and essential chemical. (f) Confirmatory Test. – An analytical test using a device, tool or equipment with a different chemical or physical principle that is more specific which will validate and confirm the result of the screening test. (g) Controlled Delivery. – The investigative technique of allowing an unlawful or suspect consignment of any dangerous drug and/or controlled precursor and essential chemical, equipment or paraphernalia, or property believed to be derived directly or indirectly from any offense, to pass into, through or out of the country under the supervision of an authorized officer, with a view to gathering evidence to identify any person involved in any dangerous drugs related offense, or to facilitate prosecution of that offense. (h) Controlled Precursors and Essential Chemicals. – Include those listed in Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances as enumerated in the attached annex, which is an integral part of this Act. (i) Cultivate or Culture. – Any act of knowingly planting, growing, raising, or permitting the planting, growing or raising of any plant which is the source of a dangerous drug. (j) Dangerous Drugs. – Include those listed in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances as enumerated in the attached annex which is an integral part of this Act. (k) Deliver. – Any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration. (l) Den, Dive or Resort. – A place where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, stored for illegal purposes, distributed, sold or used in any form. (m) Dispense. – Any act of giving away, selling or distributing medicine or any dangerous drug with or without the use of prescription. (n) Drug Dependence. – As based on the World Health Organization definition, it is a cluster of physiological, behavioral and cognitive phenomena of variable intensity, in which the use of psychoactive drug takes on a high priority thereby involving, among others, a strong desire or a sense of compulsion to take the substance and the difficulties in controlling substance-taking behavior in terms of its onset, termination, or levels of use. (o) Drug Syndicate. – Any organized group of two (2) or more persons forming or joining together with the intention of committing any offense prescribed under this Act. (p) Employee of Den, Dive or Resort. – The caretaker, helper, watchman, lookout, and other persons working in the den, dive or resort, employed by the maintainer, owner and/or operator where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, distributed, sold or used, with or without compensation, in connection with the operation thereof. (q) Financier. – Any person who pays for, raises or supplies money for, or underwrites any of the illegal activities prescribed under this Act. (r) Illegal Trafficking. – The illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale, trading, transportation, distribution, importation, exportation and possession of any dangerous drug and/or controlled precursor and essential chemical. (s) Instrument. – Any thing that is used in or intended to be used in any manner in the commission of illegal drug trafficking or related offenses. (t) Laboratory Equipment. – The paraphernalia, apparatus, materials or appliances when used, intended for use or designed for use in the manufacture of any dangerous drug and/or controlled precursor and essential chemical, such as reaction vessel, preparative/purifying equipment, fermentors, separatory funnel, flask, heating mantle, gas generator, or their substitute. (u) Manufacture. – The production, preparation, compounding or processing of any dangerous drug and/or controlled precursor and essential chemical, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and shall include any packaging or repackaging of such substances, design or configuration of its form, or labeling or relabeling of its container; except that such terms do not include the preparation, compounding, packaging or labeling of a drug or other substances by a duly authorized practitioner as an incident to his/her administration or dispensation of such drug or substance in the course of his/her professional practice including research, teaching and chemical analysis of dangerous drugs or such substances that are not intended for sale or for any other purpose. (v) Cannabis or commonly known as "Marijuana" or "Indian Hemp" or by its any other name. – Embraces every kind, class, genus, or specie of the plant Cannabis sativa L. including, but not limited to, Cannabis americana, hashish, bhang, guaza, churrus and ganjab, and embraces every kind, class and character of marijuana, whether dried or fresh and flowering, flowering or fruiting tops, or any part or portion of the plant and seeds thereof, and all its geographic varieties, whether as a reefer, resin, extract, tincture or in any form whatsoever. (w) Methylenedioxymethamphetamine (MDMA) or commonly known as "Ecstasy", or by its any other name. – Refers to the drug having such chemical composition, including any of its isomers or derivatives in any form.
  • 131. CRIMINAL LAW REVIEWER 131 (x) Methamphetamine Hydrochloride or commonly known as "Shabu", "Ice", "Meth", or by its any other name. – Refers to the drug having such chemical composition, including any of its isomers or derivatives in any form. (y) Opium. – Refers to the coagulated juice of the opium poppy (Papaver somniferum L.) and embraces every kind, class and character of opium, whether crude or prepared; the ashes or refuse of the same; narcotic preparations thereof or therefrom; morphine or any alkaloid of opium; preparations in which opium, morphine or any alkaloid of opium enters as an ingredient; opium poppy; opium poppy straw; and leaves or wrappings of opium leaves, whether prepared for use or not. (z) Opium Poppy. – Refers to any part of the plant of the species Papaver somniferum L., Papaver setigerum DC, Papaver orientale, Papaver bracteatum and Papaver rhoeas, which includes the seeds, straws, branches, leaves or any part thereof, or substances derived therefrom, even for floral, decorative and culinary purposes. (aa) PDEA. – Refers to the Philippine Drug Enforcement Agency under Section 82, Article IX of this Act. (bb) Person. – Any entity, natural or juridical, including among others, a corporation, partnership, trust or estate, joint stock company, association, syndicate, joint venture or other unincorporated organization or group capable of acquiring rights or entering into obligations. (cc) Planting of Evidence. – The willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act, whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of this Act. (dd) Practitioner. – Any person who is a licensed physician, dentist, chemist, medical technologist, nurse, midwife, veterinarian or pharmacist in the Philippines. (ee) Protector/Coddler. – Any person who knowingly and willfully consents to the unlawful acts provided for in this Act and uses his/her influence, power or position in shielding, harboring, screening or facilitating the escape of any person he/she knows, or has reasonable grounds to believe on or suspects, has violated the provisions of this Act in order to prevent the arrest, prosecution and conviction of the violator. (ff) Pusher. – Any person who sells, trades, administers, dispenses, delivers or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports dangerous drugs or who acts as a broker in any of such transactions, in violation of this Act. (gg) School. – Any educational institution, private or public, undertaking educational operation for pupils/students pursuing certain studies at defined levels, receiving instructions from teachers, usually located in a building or a group of buildings in a particular physical or cyber site. (hh) Screening Test. – A rapid test performed to establish potential/presumptive positive result. (ii) Sell. – Any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for money or any other consideration. (jj) Trading. – Transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and essential chemicals using electronic devices such as, but not limited to, text messages, email, mobile or landlines, two-way radios, internet, instant messengers and chat rooms or acting as a broker in any of such transactions whether for money or any other consideration in violation of this Act. (kk) Use. – Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of the body, and of the dangerous drugs. ARTICLE II Unlawful Acts and Penalties Section 4. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.- .The penalty of life imprisonment to death and a ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall import or bring into the Philippines any dangerous drug, regardless of the quantity and purity involved, including any and all species of opium poppy or any part thereof or substances derived therefrom even for floral, decorative and culinary purposes. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall import any controlled precursor and essential chemical. The maximum penalty provided for under this Section shall be imposed upon any person, who, unless authorized under this Act, shall import or bring into the Philippines any dangerous drug and/or controlled precursor and essential chemical through the use of a diplomatic passport, diplomatic facilities or any other means involving his/her official status intended to facilitate the unlawful entry of the same. In addition, the diplomatic passport shall be confiscated and canceled. The maximum penalty provided for under this Section shall be imposed upon any person, who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section. The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section.
  • 132. CRIMINAL LAW REVIEWER 132 Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions. If the sale, trading, administration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpires within one hundred (100) meters from the school, the maximum penalty shall be imposed in every case. For drug pushers who use minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity directly connected to the dangerous drugs and/or controlled precursors and essential chemical trade, the maximum penalty shall be imposed in every case. If the victim of the offense is a minor or a mentally incapacitated individual, or should a dangerous drug and/or a controlled precursor and essential chemical involved in any offense herein provided be the proximate cause of death of a victim thereof, the maximum penalty provided for under this Section shall be imposed. The maximum penalty provided for under this Section shall be imposed upon any person who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section. The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section. Section 6. Maintenance of a Den, Dive or Resort. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person or group of persons who shall maintain a den, dive or resort where any dangerous drug is used or sold in any form. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person or group of persons who shall maintain a den, dive, or resort where any controlled precursor and essential chemical is used or sold in any form. The maximum penalty provided for under this Section shall be imposed in every case where any dangerous drug is administered, delivered or sold to a minor who is allowed to use the same in such a place. Should any dangerous drug be the proximate cause of the death of a person using the same in such den, dive or resort, the penalty of death and a fine ranging from One million (P1,000,000.00) to Fifteen million pesos (P500,000.00) shall be imposed on the maintainer, owner and/or operator. If such den, dive or resort is owned by a third person, the same shall be confiscated and escheated in favor of the government: Provided, That the criminal complaint shall specifically allege that such place is intentionally used in the furtherance of the crime: Provided, further, That the prosecution shall prove such intent on the part of the owner to use the property for such purpose: Provided, finally, That the owner shall be included as an accused in the criminal complaint. The maximum penalty provided for under this Section shall be imposed upon any person who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section. The penalty twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section. Section 7. Employees and Visitors of a Den, Dive or Resort. - The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon: (a) Any employee of a den, dive or resort, who is aware of the nature of the place as such; and (b) Any person who, not being included in the provisions of the next preceding, paragraph, is aware of the nature of the place as such and shall knowingly visit the same Section 8. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall engage in the manufacture of any dangerous drug. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall manufacture any controlled precursor and essential chemical.
  • 133. CRIMINAL LAW REVIEWER 133 The presence of any controlled precursor and essential chemical or laboratory equipment in the clandestine laboratory is a prima facie proof of manufacture of any dangerous drug. It shall be considered an aggravating circumstance if the clandestine laboratory is undertaken or established under the following circumstances: (a) Any phase of the manufacturing process was conducted in the presence or with the help of minor/s: (b) Any phase or manufacturing process was established or undertaken within one hundred (100) meters of a residential, business, church or school premises; (c) Any clandestine laboratory was secured or protected with booby traps; (d) Any clandestine laboratory was concealed with legitimate business operations; or (e) Any employment of a practitioner, chemical engineer, public official or foreigner. The maximum penalty provided for under this Section shall be imposed upon any person, who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section. The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section. Section 9. Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals. - The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall illegally divert any controlled precursor and essential chemical. Section 10. Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person who shall deliver, possess with intent to deliver, or manufacture with intent to deliver equipment, instrument, apparatus and other paraphernalia for dangerous drugs, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal any dangerous drug and/or controlled precursor and essential chemical in violation of this Act. The penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed if it will be used to inject, ingest, inhale or otherwise introduce into the human body a dangerous drug in violation of this Act. The maximum penalty provided for under this Section shall be imposed upon any person, who uses a minor or a mentally incapacitated individual to deliver such equipment, instrument, apparatus and other paraphernalia for dangerous drugs. Section 11. Possession of Dangerous Drugs. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of the degree of purity thereof: (1) 10 grams or more of opium; (2) 10 grams or more of morphine; (3) 10 grams or more of heroin; (4) 10 grams or more of cocaine or cocaine hydrochloride; (5) 50 grams or more of methamphetamine hydrochloride or "shabu"; (6) 10 grams or more of marijuana resin or marijuana resin oil; (7) 500 grams or more of marijuana; and (8) 10 grams or more of other dangerous drugs such as, but not limited to, methylenedioxymethamphetamine (MDA) or "ecstasy", paramethoxyamphetamine (PMA), trimethoxyamphetamine (TMA), lysergic acid diethylamine (LSD), gamma hydroxyamphetamine (GHB), and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements, as determined and promulgated by the Board in accordance to Section 93, Article XI of this Act. Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows: (1) Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantity of methamphetamine hydrochloride or "shabu" is ten (10) grams or more but less than fifty (50) grams; (2) Imprisonment of twenty (20) years and one (1) day to life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantities of dangerous drugs are five (5) grams or more but less than ten (10) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy",
  • 134. CRIMINAL LAW REVIEWER 134 PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or three hundred (300) grams or more but less than five (hundred) 500) grams of marijuana; and (3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana. Section 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs. - The penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess or have under his/her control any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body: Provided, That in the case of medical practitioners and various professionals who are required to carry such equipment, instrument, apparatus and other paraphernalia in the practice of their profession, the Board shall prescribe the necessary implementing guidelines thereof. The possession of such equipment, instrument, apparatus and other paraphernalia fit or intended for any of the purposes enumerated in the preceding paragraph shall be prima facie evidence that the possessor has smoked, consumed, administered to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to have violated Section 15 of this Act. Section 13. Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings. – Any person found possessing any dangerous drug during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) persons, shall suffer the maximum penalties provided for in Section 11 of this Act, regardless of the quantity and purity of such dangerous drugs. Section 14. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings. - The maximum penalty provided for in Section 12 of this Act shall be imposed upon any person, who shall possess or have under his/her control any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body, during parties, social gatherings or meetings, or in the proximate company of at least two (2) persons. Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00): Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply. Section 16. Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who shall plant, cultivate or culture marijuana, opium poppy or any other plant regardless of quantity, which is or may hereafter be classified as a dangerous drug or as a source from which any dangerous drug may be manufactured or derived: Provided, That in the case of medical laboratories and medical research centers which cultivate or culture marijuana, opium poppy and other plants, or materials of such dangerous drugs for medical experiments and research purposes, or for the creation of new types of medicine, the Board shall prescribe the necessary implementing guidelines for the proper cultivation, culture, handling, experimentation and disposal of such plants and materials. The land or portions thereof and/or greenhouses on which any of said plants is cultivated or cultured shall be confiscated and escheated in favor of the State, unless the owner thereof can prove lack of knowledge of such cultivation or culture despite the exercise of due diligence on his/her part. If the land involved is part of the public domain, the maximum penalty provided for under this Section shall be imposed upon the offender. The maximum penalty provided for under this Section shall be imposed upon any person, who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section. The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section.
  • 135. CRIMINAL LAW REVIEWER 135 Section 17. Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of imprisonment ranging from one (1) year and one (1) day to six (6) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any practitioner, manufacturer, wholesaler, importer, distributor, dealer or retailer who violates or fails to comply with the maintenance and keeping of the original records of transactions on any dangerous drug and/or controlled precursor and essential chemical in accordance with Section 40 of this Act. An additional penalty shall be imposed through the revocation of the license to practice his/her profession, in case of a practitioner, or of the business, in case of a manufacturer, seller, importer, distributor, dealer or retailer. Section 18. Unnecessary Prescription of Dangerous Drugs. – The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) and the additional penalty of the revocation of his/her license to practice shall be imposed upon the practitioner, who shall prescribe any dangerous drug to any person whose physical or physiological condition does not require the use or in the dosage prescribed therein, as determined by the Board in consultation with recognized competent experts who are authorized representatives of professional organizations of practitioners, particularly those who are involved in the care of persons with severe pain. Section 19. Unlawful Prescription of Dangerous Drugs. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall make or issue a prescription or any other writing purporting to be a prescription for any dangerous drug. Section 20. Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, Including the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential Chemicals. – Every penalty imposed for the unlawful importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture of any dangerous drug and/or controlled precursor and essential chemical, the cultivation or culture of plants which are sources of dangerous drugs, and the possession of any equipment, instrument, apparatus and other paraphernalia for dangerous drugs including other laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the government, of all the proceeds and properties derived from the unlawful act, including, but not limited to, money and other assets obtained thereby, and the instruments or tools with which the particular unlawful act was committed, unless they are the property of a third person not liable for the unlawful act, but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section 21 of this Act. After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to his/her lawful income: Provided, however, That if the forfeited property is a vehicle, the same shall be auctioned off not later than five (5) days upon order of confiscation or forfeiture. During the pendency of the case in the Regional Trial Court, no property, or income derived therefrom, which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodia legis and no bond shall be admitted for the release of the same. The proceeds of any sale or disposition of any property confiscated or forfeited under this Section shall be used to pay all proper expenses incurred in the proceedings for the confiscation, forfeiture, custody and maintenance of the property pending disposition, as well as expenses for publication and court costs. The proceeds in excess of the above expenses shall accrue to the Board to be used in its campaign against illegal drugs. Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be
  • 136. CRIMINAL LAW REVIEWER 136 submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; (3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty- four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provided, further, That a representative sample, duly weighed and recorded is retained; (5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board; (6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former; (7) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same; and (8) Transitory Provision: a) Within twenty- four (24) hours from the effectivity of this Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representatives of the Court, DOJ, Department of Health (DOH) and the accused/and or his/her counsel, and, b) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH. Section 22. Grant of Compensation, Reward and Award. – The Board shall recommend to the concerned government agency the grant of compensation, reward and award to any person providing information and to law enforcers participating in the operation, which results in the successful confiscation, seizure or surrender of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals. Section 23. Plea-Bargaining Provision. – Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining. Section 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. – Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. Section 25. Qualifying Aggravating Circumstances in the Commission of a Crime by an Offender Under the Influence of Dangerous Drugs. – Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable. Section 26. Attempt or Conspiracy. – Any attempt or conspiracy to commit the following unlawful acts
  • 137. CRIMINAL LAW REVIEWER 137 shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act: (a) Importation of any dangerous drug and/or controlled precursor and essential chemical; (b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical; (c) Maintenance of a den, dive or resort where any dangerous drug is used in any form; (d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and (e) Cultivation or culture of plants which are sources of dangerous drugs. Section 27. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication or Failure to Account for the Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment Including the Proceeds or Properties Obtained from the Unlawful Act Committed. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00), in addition to absolute perpetual disqualification from any public office, shall be imposed upon any public officer or employee who misappropriates, misapplies or fails to account for confiscated, seized or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful acts as provided for in this Act. Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs as prescribed in this Act, or have received any financial or material contributions or donations from natural or juridical persons found guilty of trafficking dangerous drugs as prescribed in this Act, shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government, its divisions, subdivisions, and intermediaries, including government-owned or –controlled corporations. Section 28. Criminal Liability of Government Officials and Employees. – The maximum penalties of the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual disqualification from any public office, if those found guilty of such unlawful acts are government officials and employees. Section 29. Criminal Liability for Planting of Evidence. – Any person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death. Section 30. Criminal Liability of Officers of Partnerships, Corporations, Associations or Other Juridical Entities. – In case any violation of this Act is committed by a partnership, corporation, association or any juridical entity, the partner, president, director, manager, trustee, estate administrator, or officer who consents to or knowingly tolerates such violation shall be held criminally liable as a co-principal. The penalty provided for the offense under this Act shall be imposed upon the partner, president, director, manager, trustee, estate administrator, or officer who knowingly authorizes, tolerates or consents to the use of a vehicle, vessel, aircraft, equipment or other facility, as an instrument in the importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture of dangerous drugs, or chemical diversion, if such vehicle, vessel, aircraft, equipment or other instrument is owned by or under the control or supervision of the partnership, corporation, association or juridical entity to which they are affiliated. Section 31. Additional Penalty if Offender is an Alien. – In addition to the penalties prescribed in the unlawful act committed, any alien who violates such provisions of this Act shall, after service of sentence, be deported immediately without further proceedings, unless the penalty is death. Section 32. Liability to a Person Violating Any Regulation Issued by the Board. – The penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any person found violating any regulation duly issued by the Board pursuant to this Act, in addition to the administrative sanctions imposed by the Board. Section 33. Immunity from Prosecution and Punishment. – Notwithstanding the provisions of Section 17, Rule 119 of the Revised Rules of Criminal Procedure and the provisions of Republic Act No. 6981 or the Witness Protection, Security and Benefit Act of 1991, any person who has violated Sections 7, 11, 12, 14, 15, and 19, Article II of this Act, who voluntarily gives information about any violation of Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this Act as well as any violation of the offenses mentioned if committed by a drug syndicate, or any information leading to the whereabouts, identities and arrest of all or any of the members thereof; and who willingly testifies against such persons as described above, shall be exempted from prosecution or punishment for the offense with reference to which his/her information of testimony were given, and may plead or prove the giving of such information and testimony in bar of such
  • 138. CRIMINAL LAW REVIEWER 138 prosecution: Provided, That the following conditions concur: (1) The information and testimony are necessary for the conviction of the persons described above; (2) Such information and testimony are not yet in the possession of the State; (3) Such information and testimony can be corroborated on its material points; (4) the informant or witness has not been previously convicted of a crime involving moral turpitude, except when there is no other direct evidence available for the State other than the information and testimony of said informant or witness; and (5) The informant or witness shall strictly and faithfully comply without delay, any condition or undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant of immunity from prosecution and punishment. Provided, further, That this immunity may be enjoyed by such informant or witness who does not appear to be most guilty for the offense with reference to which his/her information or testimony were given: Provided, finally, That there is no direct evidence available for the State except for the information and testimony of the said informant or witness. Section 34. Termination of the Grant of Immunity. – The immunity granted to the informant or witness, as prescribed in Section 33 of this Act, shall not attach should it turn out subsequently that the information and/or testimony is false, malicious or made only for the purpose of harassing, molesting or in any way prejudicing the persons described in the preceding Section against whom such information or testimony is directed against. In such case, the informant or witness shall be subject to prosecution and the enjoyment of all rights and benefits previously accorded him under this Act or any other law, decree or order shall be deemed terminated. In case an informant or witness under this Act fails or refuses to testify without just cause, and when lawfully obliged to do so, or should he/she violate any condition accompanying such immunity as provided above, his/her immunity shall be removed and he/she shall likewise be subject to contempt and/or criminal prosecution, as the case may be, and the enjoyment of all rights and benefits previously accorded him under this Act or in any other law, decree or order shall be deemed terminated. In case the informant or witness referred to under this Act falls under the applicability of this Section hereof, such individual cannot avail of the provisions under Article VIII of this Act. Section 35. Accessory Penalties. – A person convicted under this Act shall be disqualified to exercise his/her civil rights such as but not limited to, the rights of parental authority or guardianship, either as to the person or property of any ward, the rights to dispose of such property by any act or any conveyance inter vivos, and political rights such as but not limited to, the right to vote and be voted for. Such rights shall also be suspended during the pendency of an appeal from such conviction. ARTICLE III Dangerous Drugs Test and Record Requirements Section 36. Authorized Drug Testing. – Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of test results. The DOH shall take steps in setting the price of the drug test with DOH accredited drug testing centers to further reduce the cost of such drug test. The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of the drug used and the confirmatory test which will confirm a positive screening test. Drug test certificates issued by accredited drug testing centers shall be valid for a one-year period from the date of issue which may be used for other purposes. The following shall be subjected to undergo drug testing: (a) Applicants for driver's license. – No driver's license shall be issued or renewed to any person unless he/she presents a certification that he/she has undergone a mandatory drug test and indicating thereon that he/she is free from the use of dangerous drugs; (b) Applicants for firearm's license and for permit to carry firearms outside of residence. – All applicants for firearm's license and permit to carry firearms outside of residence shall undergo a mandatory drug test to ensure that they are free from the use of dangerous drugs: Provided, That all persons who by the nature of their profession carry firearms shall undergo drug testing; (c) Students of secondary and tertiary schools. – Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing: Provided, That all drug testing expenses whether in public or private schools under this Section will be borne by the government; (d) Officers and employees of public and private offices. – Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, which shall be borne by the employer, for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; (e) Officers and members of the military, police and other law enforcement agencies.
  • 139. CRIMINAL LAW REVIEWER 139 – Officers and members of the military, police and other law enforcement agencies shall undergo an annual mandatory drug test; (f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall have to undergo a mandatory drug test; and (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. Section 37. Issuance of False or Fraudulent Drug Test Results. – Any person authorized, licensed or accredited under this Act and its implementing rules to conduct drug examination or test, who issues false or fraudulent drug test results knowingly, willfully or through gross negligence, shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00). An additional penalty shall be imposed through the revocation of the license to practice his/her profession in case of a practitioner, and the closure of the drug testing center. Section 38. Laboratory Examination or Test on Apprehended/Arrested Offenders. – Subject to Section 15 of this Act, any person apprehended or arrested for violating the provisions of this Act shall be subjected to screening laboratory examination or test within twenty-four (24) hours, if the apprehending or arresting officer has reasonable ground to believe that the person apprehended or arrested, on account of physical signs or symptoms or other visible or outward manifestation, is under the influence of dangerous drugs. If found to be positive, the results of the screening laboratory examination or test shall be challenged within fifteen (15) days after receipt of the result through a confirmatory test conducted in any accredited analytical laboratory equipment with a gas chromatograph/mass spectrometry equipment or some such modern and accepted method, if confirmed the same shall be prima facie evidence that such person has used dangerous drugs, which is without prejudice for the prosecution for other violations of the provisions of this Act: Provided, That a positive screening laboratory test must be confirmed for it to be valid in a court of law. Section 39. Accreditation of Drug Testing Centers and Physicians. – The DOH shall be tasked to license and accredit drug testing centers in each province and city in order to assure their capacity, competence, integrity and stability to conduct the laboratory examinations and tests provided in this Article, and appoint such technical and other personnel as may be necessary for the effective implementation of this provision. The DOH shall also accredit physicians who shall conduct the drug dependency examination of a drug dependent as well as the after-care and follow-up program for the said drug dependent. There shall be a control regulations, licensing and accreditation division under the supervision of the DOH for this purpose. For this purpose, the DOH shall establish, operate and maintain drug testing centers in government hospitals, which must be provided at least with basic technologically advanced equipment and materials, in order to conduct the laboratory examination and tests herein provided, and appoint such qualified and duly trained technical and other personnel as may be necessary for the effective implementation of this provision. Section 40. Records Required for Transactions on Dangerous Drug and Precursors and Essential Chemicals. – a) Every pharmacist dealing in dangerous drugs and/or controlled precursors and essential chemicals shall maintain and keep an original record of sales, purchases, acquisitions and deliveries of dangerous drugs, indicating therein the following information: (1) License number and address of the pharmacist; (2) Name, address and license of the manufacturer, importer or wholesaler from whom the dangerous drugs have been purchased; (3) Quantity and name of the dangerous drugs purchased or acquired; (4) Date of acquisition or purchase; (5) Name, address and community tax certificate number of the buyer; (6) Serial number of the prescription and the name of the physician, dentist, veterinarian or practitioner issuing the same; (7) Quantity and name of the dangerous drugs sold or delivered; and (8) Date of sale or delivery. A certified true copy of such record covering a period of six (6) months, duly signed by the pharmacist or the owner of the drugstore, pharmacy or chemical establishment, shall be forwarded to the Board within fifteen (15) days following the last day of June and December of each year, with a copy thereof furnished the city or municipal health officer concerned. (b) A physician, dentist, veterinarian or practitioner authorized to prescribe any dangerous drug shall issue the prescription therefor in one (1) original and two (2)
  • 140. CRIMINAL LAW REVIEWER 140 duplicate copies. The original, after the prescription has been filled, shall be retained by the pharmacist for a period of one (1) year from the date of sale or delivery of such drug. One (1) copy shall be retained by the buyer or by the person to whom the drug is delivered until such drug is consumed, while the second copy shall be retained by the person issuing the prescription. For purposes of this Act, all prescriptions issued by physicians, dentists, veterinarians or practitioners shall be written on forms exclusively issued by and obtainable from the DOH. Such forms shall be made of a special kind of paper and shall be distributed in such quantities and contain such information and other data as the DOH may, by rules and regulations, require. Such forms shall only be issued by the DOH through its authorized employees to licensed physicians, dentists, veterinarians and practitioners in such quantities as the Board may authorize. In emergency cases, however, as the Board may specify in the public interest, a prescription need not be accomplished on such forms. The prescribing physician, dentist, veterinarian or practitioner shall, within three (3) days after issuing such prescription, inform the DOH of the same in writing. No prescription once served by the drugstore or pharmacy be reused nor any prescription once issued be refilled. (c) All manufacturers, wholesalers, distributors, importers, dealers and retailers of dangerous drugs and/or controlled precursors and essential chemicals shall keep a record of all inventories, sales, purchases, acquisitions and deliveries of the same as well as the names, addresses and licenses of the persons from whom such items were purchased or acquired or to whom such items were sold or delivered, the name and quantity of the same and the date of the transactions. Such records may be subjected anytime for review by the Board. ARTICLE IV Participation of the Family, Students, Teachers and School Authorities in the Enforcement of this Act Section 41. Involvement of the Family. – The family being the basic unit of the Filipino society shall be primarily responsible for the education and awareness of the members of the family on the ill effects of dangerous drugs and close monitoring of family members who may be susceptible to drug abuse. Section 42. Student Councils and Campus Organizations. – All elementary, secondary and tertiary schools' student councils and campus organizations shall include in their activities a program for the prevention of and deterrence in the use of dangerous drugs, and referral for treatment and rehabilitation of students for drug dependence. Section 43. School Curricula. – Instruction on drug abuse prevention and control shall be integrated in the elementary, secondary and tertiary curricula of all public and private schools, whether general, technical, vocational or agro-industrial as well as in non-formal, informal and indigenous learning systems. Such instructions shall include: (1) Adverse effects of the abuse and misuse of dangerous drugs on the person, the family, the school and the community; (2) Preventive measures against drug abuse; (3) Health, socio-cultural, psychological, legal and economic dimensions and implications of the drug problem; (4) Steps to take when intervention on behalf of a drug dependent is needed, as well as the services available for the treatment and rehabilitation of drug dependents; and (5) Misconceptions about the use of dangerous drugs such as, but not limited to, the importance and safety of dangerous drugs for medical and therapeutic use as well as the differentiation between medical patients and drug dependents in order to avoid confusion and accidental stigmatization in the consciousness of the students. Section 44. Heads, Supervisors, and Teachers of Schools. – For the purpose of enforcing the provisions of Article II of this Act, all school heads, supervisors and teachers shall be deemed persons in authority and, as such, are hereby empowered to apprehend, arrest or cause the apprehension or arrest of any person who shall violate any of the said provisions, pursuant to Section 5, Rule 113 of the Rules of Court. They shall be deemed persons in authority if they are in the school or within its immediate vicinity, or even beyond such immediate vicinity if they are in attendance at any school or class function in their official capacity as school heads, supervisors, and teachers. Any teacher or school employee, who discovers or finds that any person in the school or within its immediate vicinity is liable for violating any of said provisions, shall have the duty to report the same to the school head or immediate superior who shall, in turn, report the matter to the proper authorities. Failure to do so in either case, within a reasonable period from the time of discovery of the violation shall, after due hearing, constitute sufficient cause for disciplinary action by the school authorities. Section 45. Publication and Distribution of Materials on Dangerous Drugs. – With the assistance of the Board, the Secretary of the Department of Education (DepEd), the Chairman of the Commission on Higher Education (CHED) and the Director- General of the Technical Education and Skills Development Authority (TESDA) shall cause the development, publication and distribution of information and support educational materials on
  • 141. CRIMINAL LAW REVIEWER 141 dangerous drugs to the students, the faculty, the parents, and the community. Section 46. Special Drug Education Center. – With the assistance of the Board, the Department of the Interior and Local Government (DILG), the National Youth Commission (NYC), and the Department of Social Welfare and Development (DSWD) shall establish in each of its provincial office a special education drug center for out-of-school youth and street children. Such Center which shall be headed by the Provincial Social. Welfare Development Officer shall sponsor drug prevention programs and activities and information campaigns with the end in view of educating the out-of-school youth and street children regarding the pernicious effects of drug abuse. The programs initiated by the Center shall likewise be adopted in all public and private orphanage and existing special centers for street children. ARTICLE V Promotion of a National Drug-Free Workplace Program With the Participation of Private and Labor Sectors and the Department of Labor and Employment Section 47. Drug-Free Workplace. – It is deemed a policy of the State to promote drug-free workplaces using a tripartite approach. With the assistance of the Board, the Department of Labor and Employment (DOLE) shall develop, promote and implement a national drug abuse prevention program in the workplace to be adopted by private companies with ten (10) or more employees. Such program shall include the mandatory drafting and adoption of company policies against drug use in the workplace in close consultation and coordination with the DOLE, labor and employer organizations, human resource development managers and other such private sector organizations. Section 48. Guidelines for the National Drug-Free Workplace Program. – The Board and the DOLE shall formulate the necessary guidelines for the implementation of the national drug-free workplace program. The amount necessary for the implementation of which shall be included in the annual General Appropriations Act. ARTICLE VI Participation of the Private and Labor Sectors in the Enforcement of this Act Section 49. Labor Organizations and the Private Sector. – All labor unions, federations, associations, or organizations in cooperation with the respective private sector partners shall include in their collective bargaining or any similar agreements, joint continuing programs and information campaigns for the laborers similar to the programs provided under Section 47 of this Act with the end in view of achieving a drug free workplace. Section 50. Government Assistance. – The labor sector and the respective partners may, in pursuit of the programs mentioned in the preceding Section, secure the technical assistance, such as but not limited to, seminars and information dissemination campaigns of the appropriate government and law enforcement agencies. ARTICLE VII Participation of Local Government Units Section 51. Local Government Units' Assistance. – Local government units shall appropriate a substantial portion of their respective annual budgets to assist in or enhance the enforcement of this Act giving priority to preventive or educational programs and the rehabilitation or treatment of drug dependents. Section 52. Abatement of Drug Related Public Nuisances. – Any place or premises which have been used on two or more occasions as the site of the unlawful sale or delivery of dangerous drugs may be declared to be a public nuisance, and such nuisance may be abated, pursuant to the following procedures: (1) Any city or municipality may, by ordinance, create an administrative board to hear complaints regarding the nuisances; (2) any employee, officer, or resident of the city or municipality may bring a complaint before the Board after giving not less than three (3) days written notice of such complaint to the owner of the place or premises at his/her last known address; and (3) After hearing in which the Board may consider any evidence, including evidence of the general reputation of the place or premises, and at which the owner of the premises shall have an opportunity to present evidence in his/her defense, the Board may declare the place or premises to be a public nuisance. Section 53. Effect of Board Declaration. – If the Board declares a place or premises to be a public nuisance, it may declare an order immediately prohibiting the conduct, operation, or maintenance of any business or activity on the premises which is conducive to such nuisance. An order entered under this Section shall expire after one (1) year or at such earlier time as stated in the order. The Board may bring a complaint seeking a permanent injunction against any nuisance described under this Section. This Article does not restrict the right of any person to proceed under the Civil Code against any public nuisance. ARTICLE VIII Program for Treatment and Rehabilitation of Drug Dependents Section 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. – A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, spouse,
  • 142. CRIMINAL LAW REVIEWER 142 guardian or relative within the fourth degree of consanguinity or affinity, apply to the Board or its duly recognized representative, for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination by a DOH-accredited physician results in the issuance of a certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board for a period of not less than six (6) months: Provided, That a drug dependent may be placed under the care of a DOH-accredited physician where there is no Center near or accessible to the residence of the drug dependent or where said drug dependent is below eighteen (18) years of age and is a first-time offender and non- confinement in a Center will not pose a serious danger to his/her family or the community. Confinement in a Center for treatment and rehabilitation shall not exceed one (1) year, after which time the Court, as well as the Board, shall be apprised by the head of the treatment and rehabilitation center of the status of said drug dependent and determine whether further confinement will be for the welfare of the drug dependent and his/her family or the community. Section 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this act subject to the following conditions: (1) He/she has complied with the rules and regulations of the center, the applicable rules and regulations of the Board, including the after-care and follow-up program for at least eighteen (18) months following temporary discharge from confinement in the Center or, in the case of a dependent placed under the care of the DOH- accredited physician, the after-care program and follow-up schedule formulated by the DSWD and approved by the Board: Provided, That capability-building of local government social workers shall be undertaken by the DSWD; (2) He/she has never been charged or convicted of any offense punishable under this Act, the Dangerous Drugs Act of 1972 or Republic Act No. 6425, as amended; the Revised Penal Code, as amended; or any special penal laws; (3) He/she has no record of escape from a Center: Provided, That had he/she escaped, he/she surrendered by himself/herself or through his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity, within one (1) week from the date of the said escape; and (4) He/she poses no serious danger to himself/herself, his/her family or the community by his/her exemption from criminal liability. Section 56. Temporary Release From the Center; After-Care and Follow-Up Treatment Under the Voluntary Submission Program. – Upon certification of the Center that the drug dependent within the voluntary submission program may be temporarily released, the Court shall order his/her release on condition that said drug dependent shall report to the DOH for after-care and follow-up treatment, including urine testing, for a period not exceeding eighteen (18) months under such terms and conditions that the Court may impose. If during the period of after-care and follow-up, the drug dependent is certified to be rehabilitated, he/she may be discharged by the Court, subject to the provisions of Section 55 of this Act, without prejudice to the outcome of any pending case filed in court. However, should the DOH find that during the initial after-care and follow-up program of eighteen (18) months, the drug dependent requires further treatment and rehabilitation in the Center, he/she shall be recommitted to the Center for confinement. Thereafter, he/she may again be certified for temporary release and ordered released for another after-care and follow-up program pursuant to this Section. Section 57. Probation and Community Service Under the Voluntary Submission Program. – A drug dependent who is discharged as rehabilitated by the DOH-accredited Center through the voluntary submission program, but does not qualify for exemption from criminal liability under Section 55 of this Act, may be charged under the provisions of this Act, but shall be placed on probation and undergo a community service in lieu of imprisonment and/or fine in the discretion of the court, without prejudice to the outcome of any pending case filed in court. Such drug dependent shall undergo community service as part of his/her after-care and follow-up program, which may be done in coordination with nongovernmental civil organizations accredited by the DSWD, with the recommendation of the Board. Section 58. Filing of Charges Against a Drug Dependent Who is Not Rehabilitated Under the Voluntary Submission Program. – A drug dependent, who is not rehabilitated after the second commitment to the Center under the voluntary submission program, shall, upon recommendation of the Board, be charged for violation of Section 15 of this Act and prosecuted like any other offender. If convicted, he/she shall be credited for the period of confinement and rehabilitation in the Center in the service of his/her sentence. Section 59. Escape and Recommitment for Confinement and Rehabilitation Under the Voluntary Submission Program. – Should a drug dependent under the voluntary submission program escape from the Center, he/she may submit himself/herself for recommitment within one (1) week therefrom, or his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity may, within said period, surrender him for recommitment, in which case the corresponding order shall be issued by the Board.
  • 143. CRIMINAL LAW REVIEWER 143 Should the escapee fail to submit himself/herself or be surrendered after one (1) week, the Board shall apply to the court for a recommitment order upon proof of previous commitment or his/her voluntary submission by the Board, the court may issue an order for recommitment within one (1) week. If, subsequent to a recommitment, the dependent once again escapes from confinement, he/she shall be charged for violation of Section 15 of this Act and he subjected under section 61 of this Act, either upon order of the Board or upon order of the court, as the case may be. Section 60. Confidentiality of Records Under the Voluntary Submission Program. – Judicial and medical records of drug dependents under the voluntary submission program shall be confidential and shall not be used against him for any purpose, except to determine how many times, by himself/herself or through his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity, he/she voluntarily submitted himself/herself for confinement, treatment and rehabilitation or has been committed to a Center under this program. Section 61. Compulsory Confinement of a Drug Dependent Who Refuses to Apply Under the Voluntary Submission Program. – Notwithstanding any law, rule and regulation to the contrary, any person determined and found to be dependent on dangerous drugs shall, upon petition by the Board or any of its authorized representative, be confined for treatment and rehabilitation in any Center duly designated or accredited for the purpose. A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may be filed by any person authorized by the Board with the Regional Trial Court of the province or city where such person is found. After the petition is filed, the court, by an order, shall immediately fix a date for the hearing, and a copy of such order shall be served on the person alleged to be dependent on dangerous drugs, and to the one having charge of him. If after such hearing and the facts so warrant, the court shall order the drug dependent to be examined by two (2) physicians accredited by the Board. If both physicians conclude that the respondent is not a drug dependent, the court shall order his/her discharge. If either physician finds him to be a dependent, the court shall conduct a hearing and consider all relevant evidence which may be offered. If the court finds him a drug dependent, it shall issue an order for his/her commitment to a treatment and rehabilitation center under the supervision of the DOH. In any event, the order of discharge or order of confinement or commitment shall be issued not later than fifteen (15) days from the filing of the appropriate petition. Section 62. Compulsory Submission of a Drug Dependent Charged with an Offense to Treatment and Rehabilitation. – If a person charged with an offense where the imposable penalty is imprisonment of less than six (6) years and one (1) day, and is found by the prosecutor or by the court, at any stage of the proceedings, to be a drug dependent, the prosecutor or the court as the case may be, shall suspend all further proceedings and transmit copies of the record of the case to the Board. In the event he Board determines, after medical examination, that public interest requires that such drug dependent be committed to a center for treatment and rehabilitation, it shall file a petition for his/her commitment with the regional trial court of the province or city where he/she is being investigated or tried: Provided, That where a criminal case is pending in court, such petition shall be filed in the said court. The court shall take judicial notice of the prior proceedings in the case and shall proceed to hear the petition. If the court finds him to be a drug dependent, it shall order his/her commitment to a Center for treatment and rehabilitation. The head of said Center shall submit to the court every four (4) months, or as often as the court may require, a written report on the progress of the treatment. If the dependent is rehabilitated, as certified by the center and the Board, he/she shall be returned to the court, which committed him, for his/her discharge therefrom. Thereafter, his/her prosecution for any offense punishable by law shall be instituted or shall continue, as the case may be. In case of conviction, the judgment shall, if the accused is certified by the treatment and rehabilitation center to have maintained good behavior, indicate that he/she shall be given full credit for the period he/she was confined in the Center: Provided, however, That when the offense is for violation of Section 15 of this Act and the accused is not a recidivist, the penalty thereof shall be deemed to have been served in the Center upon his/her release therefrom after certification by the Center and the Board that he/she is rehabilitated. Section 63. Prescription of the Offense Charged Against a Drug Dependent Under the Compulsory Submission Program. – The period of prescription of the offense charged against a drug dependent under the compulsory submission program shall not run during the time that the drug dependent is under confinement in a Center or otherwise under the treatment and rehabilitation program approved by the Board. Upon certification of the Center that he/she may temporarily be discharged from the said Center, the court shall order his/her release on condition that he/she shall report to the Board through the DOH for after-care and follow-up treatment for a period not exceeding eighteen (18) months under such terms and conditions as may be imposed by the Board. If at anytime during the after-care and follow-up period, the Board certifies to his/her complete rehabilitation, the court shall order his/her final discharge from confinement and order for the immediate resumption of the trial of the case for which he/she is originally charged. Should the Board through the DOH find at anytime during the after-
  • 144. CRIMINAL LAW REVIEWER 144 care and follow-up period that he/she requires further treatment and rehabilitation, it shall report to the court, which shall order his/her recommitment to the Center. Should the drug dependent, having been committed to a Center upon petition by the Board escape therefrom, he/she may resubmit himself/herself for confinement within one (1) week from the date of his/her escape; or his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity may, within the same period, surrender him for recommitment. If, however, the drug dependent does not resubmit himself/herself for confinement or he/she is not surrendered for recommitment, the Board may apply with the court for the issuance of the recommitment order. Upon proof of previous commitment, the court shall issue an order for recommitment. If, subsequent to such recommitment, he/she should escape again, he/she shall no longer be exempt from criminal liability for use of any dangerous drug. A drug dependent committed under this particular Section who is finally discharged from confinement shall be exempt from criminal liability under Section 15 of this Act, without prejudice to the outcome of any pending case filed in court. On the other hand, a drug dependent who is not rehabilitated after a second commitment to the Center shall, upon conviction by the appropriate court, suffer the same penalties provided for under Section 15 of this Act again without prejudice to the outcome of any pending case filed in court. Section 64. Confidentiality of Records Under the Compulsory Submission Program. – The records of a drug dependent who was rehabilitated and discharged from the Center under the compulsory submission program, or who was charged for violation of Section 15 of this Act, shall be covered by Section 60 of this Act. However, the records of a drug dependent who was not rehabilitated, or who escaped but did not surrender himself/herself within the prescribed period, shall be forwarded to the court and their use shall be determined by the court, taking into consideration public interest and the welfare of the drug dependent. Section 65. Duty of the Prosecutor in the Proceedings. – It shall be the duty of the provincial or the city prosecutor or their assistants or state prosecutors to prepare the appropriate petition in all proceedings arising from this Act. Section 66. Suspension of Sentence of a First-Time Minor Offender. – An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of age at the time when judgment should have been promulgated after having been found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions: (a) He/she has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code; or of any special penal laws; (b) He/she has not been previously committed to a Center or to the care of a DOH-accredited physician; and (c) The Board favorably recommends that his/her sentence be suspended. While under suspended sentence, he/she shall be under the supervision and rehabilitative surveillance of the Board, under such conditions that the court may impose for a period ranging from six (6) months to eighteen (18) months. Upon recommendation of the Board, the court may commit the accused under suspended sentence to a Center, or to the care of a DOH-accredited physician for at least six (6) months, with after-care and follow-up program for not more than eighteen (18) months. In the case of minors under fifteen (15) years of age at the time of the commission of any offense penalized under this Act, Article 192 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended by Presidential Decree No. 1179 shall apply, without prejudice to the application of the provisions of this Section. Section 67. Discharge After Compliance with Conditions of Suspended Sentence of a First-Time Minor Offender. – If the accused first time minor offender under suspended sentence complies with the applicable rules and regulations of the Board, including confinement in a Center, the court, upon a favorable recommendation of the Board for the final discharge of the accused, shall discharge the accused and dismiss all proceedings. Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge all official records, other than the confidential record to be retained by the DOJ relating to the case. Such an order, which shall be kept confidential, shall restore the accused to his/her status prior to the case. He/she shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made of him for any purpose. Section 68. Privilege of Suspended Sentence to be Availed of Only Once by a First-Time Minor Offender. – The privilege of suspended sentence shall be availed of only once by an accused drug dependent who is a first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section 15 of this Act but not more than eighteen (18) years of age at the time when judgment should have been promulgated. Section 69. Promulgation of Sentence for First-Time Minor Offender. – If the accused first-time minor offender violates any of the conditions of his/her suspended sentence, the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance over him, including the rules and regulations of the Center should confinement be required, the court shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person.
  • 145. CRIMINAL LAW REVIEWER 145 Section 70. Probation or Community Service for a First-Time Minor Offender in Lieu of Imprisonment. – Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation, even if the sentence provided under this Act is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. In case of probation, the supervision and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of the probation, the Board shall submit a written report to the court recommending termination of probation and a final discharge of the probationer, whereupon the court shall issue such an order. The community service shall be complied with under conditions, time and place as may be determined by the court in its discretion and upon the recommendation of the Board and shall apply only to violators of Section 15 of this Act. The completion of the community service shall be under the supervision and rehabilitative surveillance of the Board during the period required by the court. Thereafter, the Board shall render a report on the manner of compliance of said community service. The court in its discretion may require extension of the community service or order a final discharge. In both cases, the judicial records shall be covered by the provisions of Sections 60 and 64 of this Act. If the sentence promulgated by the court requires imprisonment, the period spent in the Center by the accused during the suspended sentence period shall be deducted from the sentence to be served. Section 71. Records to be kept by the Department of Justice. – The DOJ shall keep a confidential record of the proceedings on suspension of sentence and shall not be used for any purpose other than to determine whether or not a person accused under this Act is a first-time minor offender. Section 72. Liability of a Person Who Violates the Confidentiality of Records. – The penalty of imprisonment ranging from six (6) months and one (1) day to six (6) years and a fine ranging from One thousand pesos (P1,000.00) to Six thousand pesos (P6,000.00), shall be imposed upon any person who, having official custody of or access to the confidential records of any drug dependent under voluntary submission programs, or anyone who, having gained possession of said records, whether lawfully or not, reveals their content to any person other than those charged with the prosecution of the offenses under this Act and its implementation. The maximum penalty shall be imposed, in addition to absolute perpetual disqualification from any public office, when the offender is a government official or employee. Should the records be used for unlawful purposes, such as blackmail of the drug dependent or the members of his/her family, the penalty imposed for the crime of violation of confidentiality shall be in addition to whatever crime he/she may be convicted of. Section 73. Liability of a Parent, Spouse or Guardian Who Refuses to Cooperate with the Board or any Concerned Agency. – Any parent, spouse or guardian who, without valid reason, refuses to cooperate with the Board or any concerned agency in the treatment and rehabilitation of a drug dependent who is a minor, or in any manner, prevents or delays the after-care, follow-up or other programs for the welfare of the accused drug dependent, whether under voluntary submission program or compulsory submission program, may be cited for contempt by the court. Section 74. Cost-Sharing in the Treatment and Rehabilitation of a Drug Dependent. – The parent, spouse, guardian or any relative within the fourth degree of consanguinity of any person who is confined under the voluntary submission program or compulsory submission program shall be charged a certain percentage of the cost of his/her treatment and rehabilitation, the guidelines of which shall be formulated by the DSWD taking into consideration the economic status of the family of the person confined. The guidelines therein formulated shall be implemented by a social worker of the local government unit. Section 75. Treatment and Rehabilitation Centers. – The existing treatment and rehabilitation centers for drug dependents operated and maintained by the NBI and the PNP shall be operated, maintained and managed by the DOH in coordination with other concerned agencies. For the purpose of enlarging the network of centers, the Board through the DOH shall encourage, promote or whenever feasible, assist or support in the establishment, operations and maintenance of private centers which shall be eligible to receive grants, donations or subsidy from either government or private sources. It shall also support the establishment of government-operated regional treatment and rehabilitation centers depending upon the availability of funds. The national government, through its appropriate agencies shall give priority funding for the increase of subsidy to existing government drug rehabilitation centers, and shall establish at least one (1) drug rehabilitation center in each province, depending on the availability of funds. Section 76. The Duties and Responsibilities of the Department of health (DOH) Under this Act. – The DOH shall: (1) Oversee the monitor the integration, coordination and supervision of all drug rehabilitation, intervention, after-care and follow-up programs, projects and activities as well as the establishment, operations, maintenance and management of privately- owned drug treatment rehabilitation centers and drug testing networks and laboratories throughout the country in coordination with the DSWD and other agencies; (2) License, accredit, establish and maintain drug test network and laboratory,
  • 146. CRIMINAL LAW REVIEWER 146 initiate, conduct and support scientific research on drugs and drug control; (3) Encourage, assist and accredit private centers, promulgate rules and regulations setting minimum standards for their accreditation to assure their competence, integrity and stability; (4) Prescribe and promulgate rules and regulations governing the establishment of such Centers as it may deem necessary after conducting a feasibility study thereof; (5) The DOH shall, without prejudice to the criminal prosecution of those found guilty of violating this Act, order the closure of a Center for treatment and rehabilitation of drug dependency when, after investigation it is found guilty of violating the provisions of this Act or regulations issued by the Board; and (6) Charge reasonable fees for drug dependency examinations, other medical and legal services provided to the public, which shall accrue to the Board. All income derived from these sources shall be part of the funds constituted as special funds for the implementation of this Act under Section 87. ARTICLE IX Dangerous Drugs Board and Philippine Drug Enforcement Agency Section 77. The Dangerous Drugs Board. – The Board shall be the policy-making and strategy-formulating body in the planning and formulation of policies and programs on drug prevention and control. It shall develop and adopt a comprehensive, integrated, unified and balanced national drug abuse prevention and control strategy. It shall be under the Office of the President. Section 78. Composition of the Board. – The Board shall be composed of seventeen (17) members wherein three (3) of which are permanent members, the other twelve (12) members shall be in an ex officio capacity and the two (2) shall be regular members. The three (3) permanent members, who shall possess at least seven-year training and experience in the field of dangerous drugs and in any of the following fields: in law, medicine, criminology, psychology or social work, shall be appointed by the President of the Philippines. The President shall designate a Chairman, who shall have the rank of a secretary from among the three (3) permanent members who shall serve for six (6) years. Of the two (2) other members, who shall both have the rank of undersecretary, one (1) shall serve for four (4) years and the other for two (2) years. Thereafter, the persons appointed to succeed such members shall hold office for a term of six (6) years and until their successors shall have been duly appointed and qualified. The other twelve (12) members who shall be ex officio members of the Board are the following: (1) Secretary of the Department of Justice or his/her representative; (2) Secretary of the Department of Health or his/her representative; (3) Secretary of the Department of National Defense or his/her representative; (4) Secretary of the Department of Finance or his/her representative; (5) Secretary of the Department of Labor and Employment or his/her representative; (6) Secretary of the Department of the Interior and Local Government or his/her representative; (7) Secretary of the Department of Social Welfare and Development or his/her representative; (8) Secretary of the Department of Foreign Affairs or his/her representative; (9) Secretary of the Department of Education or his/her representative; (10) Chairman of the Commission on Higher Education or his/her representative; (11) Chairman of the National Youth Commission; (12) Director General of the Philippine Drug Enforcement Agency. Cabinet secretaries who are members of the Board may designate their duly authorized and permanent representatives whose ranks shall in no case be lower than undersecretary. The two (2) regular members shall be as follows: (a) The president of the Integrated Bar of the Philippines; and (b) The chairman or president of a non- government organization involved in dangerous drug campaign to be appointed by the President of the Philippines. The Director of the NBI and the Chief of the PNP shall be the permanent consultants of the Board, and shall attend all the meetings of the Board. All members of the Board as well as its permanent consultants shall receive a per diem for every meeting actually attended subject to the pertinent budgetary laws, rules and regulations on compensation, honoraria and allowances: Provided, That where the representative of an ex officio member or of the permanent consultant of the Board attends a meeting in behalf of the latter, such representative shall be entitled to receive the per diem. Section 79. Meetings of the Board. – The Board shall meet once a week or as often as necessary at the discretion of the Chairman or at the call of any four (4) other members. The presence of nine (9) members shall constitute a quorum. Section 80. Secretariat of the Board. – The Board shall recommend to the President of the Philippines the appointment of an Executive Director, with the rank of an undersecretary, who shall be the Secretary of the Board and administrative officer of its secretariat, and shall perform such other duties that may be assigned to him/her. He/she must possess adequate knowledge, training and experience in the field of dangerous drugs, and in any of the following fields: law enforcement, law, medicine, criminology, psychology or social work.
  • 147. CRIMINAL LAW REVIEWER 147 Two deputies executive director, for administration and operations, with the ranks of assistant secretary, shall be appointed by the President upon recommendation of the Board. They shall possess the same qualifications as those of the executive director. They shall receive a salary corresponding to their position as prescribed by the Salary Standardization Law as a Career Service Officer. The existing secretariat of the Board shall be under the administrative control and supervision of the Executive Director. It shall be composed of the following divisions, namely: Policy Studies, Research and Statistics; Preventive Education, Training and Information; Legal Affairs; and the Administrative and Financial Management. Section 81. Powers and Duties of the Board. – The Board shall: (a) Formulate, develop and establish a comprehensive, integrated, unified and balanced national drug use prevention and control strategy; (b) Promulgate such rules and regulations as may be necessary to carry out the purposes of this Act, including the manner of safekeeping, disposition, burning or condemnation of any dangerous drug and/or controlled precursor and essential chemical under its charge and custody, and prescribe administrative remedies or sanctions for the violations of such rules and regulations; (c) Conduct policy studies, program monitoring and evaluations and other researches on drug prevention, control and enforcement; (d) Initiate, conduct and support scientific, clinical, social, psychological, physical and biological researches on dangerous drugs and dangerous drugs prevention and control measures; (e) Develop an educational program and information drive on the hazards and prevention of illegal use of any dangerous drug and/or controlled precursor and essential chemical based on factual data, and disseminate the same to the general public, for which purpose the Board shall endeavor to make the general public aware of the hazards of any dangerous drugs and/or controlled precursor and essential chemical by providing among others, literature, films, displays or advertisements and by coordinating with all institutions of learning as well as with all national and local enforcement agencies in planning and conducting its educational campaign programs to be implemented by the appropriate government agencies; (f) Conduct continuing seminars for, and consultations with, and provide information materials to judges and prosecutors in coordination with the Office of the Court Administrator, in the case of judges, and the DOJ, in the case of prosecutors, which aim to provide them with the current developments and programs of the Board pertinent to its campaign against dangerous drugs and its scientific researches on dangerous drugs, its prevention and control measures; (g) Design special trainings in order to provide law enforcement officers, members of the judiciary, and prosecutors, school authorities and personnel of centers with knowledge and know-how in dangerous drugs and/or controlled precursors and essential chemicals control in coordination with the Supreme Court to meet the objectives of the national drug control programs; (h) Design and develop, in consultation and coordination with the DOH, DSWD and other agencies involved in drugs control, treatment and rehabilitation, both public and private, a national treatment and rehabilitation program for drug dependents including a standard aftercare and community service program for recovering drug dependents; (i) Design and develop, jointly with the DOLE and in consultation with labor and employer groups as well as nongovernment organizations a drug abuse prevention program in the workplace that would include a provision for employee assistance programs for emotionally-stressed employees; (j) Initiate and authorize closure proceedings against non-accredited and/or substandard rehabilitation centers based on verified reports of human rights violations, subhuman conditions, inadequate medical training and assistance and excessive fees for implementation by the PDEA; (k) Prescribe and promulgate rules and regulations governing the establishment of such centers, networks and laboratories as deemed necessary after conducting a feasibility study in coordination with the DOH and other government agencies; (l) Receive, gather, collect and evaluate all information on the importation, exportation, production, manufacture, sale, stocks, seizures of and the estimated need for any dangerous drug and/or controlled precursor and essential chemical, for which purpose the Board may require from any official, instrumentality or agency of the government or any private person or enterprise dealing in, or engaged in activities having to do with any dangerous drug and/or controlled precursors and essential chemicals such data or information as it may need to implement this Act; (m) Gather and prepare detailed statistics on the importation, exportation, manufacture, stocks, seizures of and estimates need for any dangerous drug and/or controlled precursors and essential chemicals and such other statistical data on
  • 148. CRIMINAL LAW REVIEWER 148 said drugs as may be periodically required by the United Nations Narcotics Drug Commission, the World Health Organization and other international organizations in consonance with the country's international commitments; (n) Develop and maintain international networking coordination with international drug control agencies and organizations, and implement the provisions of international conventions and agreements thereon which have been adopted and approved by the Congress of the Philippines; (o) Require all government and private hospitals, clinics, doctors, dentists and other practitioners to submit a report to it, in coordination with the PDEA, about all dangerous drugs and/or controlled precursors and essential chemicals-related cases to which they have attended for statistics and research purposes; (p) Receive in trust legacies, gifts and donations of real and personal properties of all kinds, to administer and dispose the same when necessary for the benefit of government and private rehabilitation centers subject to limitations, directions and instructions from the donors, if any; (q) Issue guidelines as to the approval or disapproval of applications for voluntary treatment, rehabilitation or confinement, wherein it shall issue the necessary guidelines, rules and regulations pertaining to the application and its enforcement; (r) Formulate guidelines, in coordination with other government agencies, the importation, distribution, production, manufacture, compounding, prescription, dispensing and sale of, and other lawful acts in connection with any dangerous drug, controlled precursors and essential chemicals and other similar or analogous substances of such kind and in such quantity as it may deem necessary according to the medical and research needs or requirements of the country including diet pills containing ephedrine and other addictive chemicals and determine the quantity and/or quality of dangerous drugs and controlled precursors and essential chemicals to be imported, manufactured and held in stock at any given time by authorized importer, manufacturer or distributor of such drugs; (s) Develop the utilization of a controlled delivery scheme in addressing the transshipment of dangerous drugs into and out of the country to neutralize transnational crime syndicates involved in illegal trafficking of any dangerous drugs and/or controlled precursors and essential chemicals; (t) Recommend the revocation of the professional license of any practitioner who is an owner, co-owner, lessee, or in the employ of the drug establishment, or manager of a partnership, corporation, association, or any juridical entity owning and/or controlling such drug establishment, and who knowingly participates in, or consents to, tolerates, or abets the commission of the act of violations as indicated in the preceding paragraph, all without prejudice to the criminal prosecution of the person responsible for the said violation; (u) Appoint such technical, administrative and other personnel as may be necessary for the effective implementation of this Act, subject to the Civil Service Law and its rules and regulations; (v) Establish a regular and continuing consultation with concerned government agencies and medical professional organizations to determine if balance exists in policies, procedures, rules and regulations on dangerous drugs and to provide recommendations on how the lawful use of dangerous drugs can be improved and facilitated; and (w) Submit an annual and periodic reports to the President, the Congress of the Philippines and the Senate and House of Representatives committees concerned as may be required from time to time, and perform such other functions as may be authorized or required under existing laws and as directed by the President himself/herself or as recommended by the congressional committees concerned. Section 82. Creation of the Philippine Drug Enforcement Agency (PDEA). – To carry out the provisions of this Act, the PDEA, which serves as the implementing arm of the Board, and shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in this Act. The PDEA shall be headed by a Director General with the rank of Undersecretary, who shall be responsible for the general administration and management of the Agency. The Director General of the PDEA shall be appointed by the President of the Philippines and shall perform such other duties that may be assigned to him/her. He/she must possess adequate knowledge, training and experience in the field of dangerous drugs, and in any of the following fields: law enforcement, law, medicine, criminology, psychology or social work. The Director General of the PDEA shall be assisted in the performance of his/her duties and responsibilities by two (2) deputies director general with the rank of Assistant Secretary; one for Operations and the other one for Administration. The two (2) deputies director general shall likewise be appointed by the President of the Philippines upon recommendation of the Board. The two (2) deputies director general shall possess the same qualifications as those of the Director General of the PDEA. The Director General and the two (2) deputies director general shall receive the compensation and salaries as prescribed by law.
  • 149. CRIMINAL LAW REVIEWER 149 Section 83. Organization of the PDEA. – The present Secretariat of the National Drug Law Enforcement and Prevention Coordinating Center as created by Executive Order No. 61 shall be accordingly modified and absorbed by the PDEA. The Director General of the PDEA shall be responsible for the necessary changes in the organizational set-up which shall be submitted to the Board for approval. For purposes of carrying out its duties and powers as provided for in the succeeding Section of this Act, the PDEA shall have the following Services, namely: Intelligence and Investigation; International Cooperation and Foreign Affairs; Preventive Education and Community Involvement; Plans and Operations; Compliance; Legal and Prosecution; Administrative and Human Resource; Financial Management; Logistics Management; and Internal Affairs. The PDEA shall establish and maintain regional offices in the different regions of the country which shall be responsible for the implementation of this Act and the policies, programs, and projects of said agency in their respective regions. Section 84. Powers and Duties of the PDEA. – The PDEA shall: (a) Implement or cause the efficient and effective implementation of the national drug control strategy formulated by the Board thereby carrying out a national drug campaign program which shall include drug law enforcement, control and prevention campaign with the assistance of concerned government agencies; (b) Undertake the enforcement of the provisions of Article II of this Act relative to the unlawful acts and penalties involving any dangerous drug and/or controlled precursor and essential chemical and investigate all violators and other matters involved in the commission of any crime relative to the use, abuse or trafficking of any dangerous drug and/or controlled precursor and essential chemical as provided for in this Act and the provisions of Presidential Decree No. 1619; (c) Administer oath, issue subpoena and subpoena duces tecum relative to the conduct of investigation involving the violations of this Act; (d) Arrest and apprehend as well as search all violators and seize or confiscate, the effects or proceeds of the crimes as provided by law and take custody thereof, for this purpose the prosecutors and enforcement agents are authorized to possess firearms, in accordance with existing laws; (e) Take charge and have custody of all dangerous drugs and/or controlled precursors and essential chemicals seized, confiscated or surrendered to any national, provincial or local law enforcement agency, if no longer needed for purposes of evidence in court; (f) Establish forensic laboratories in each PNP office in every province and city in order to facilitate action on seize or confiscated drugs, thereby hastening its destruction without delay; (g) Recommend to the DOJ the forfeiture of properties and other assets of persons and/or corporations found to be violating the provisions of this Act and in accordance with the pertinent provisions of the Anti- Money-Laundering Act of 2001; (h) Prepare for prosecution or cause the filing of appropriate criminal and civil cases for violation of all laws on dangerous drugs, controlled precursors and essential chemicals, and other similar controlled substances, and assist, support and coordinate with other government agencies for the proper and effective prosecution of the same; (i) Monitor and if warranted by circumstances, in coordination with the Philippine Postal Office and the Bureau of Customs, inspect all air cargo packages, parcels and mails in the central post office, which appear from the package and address itself to be a possible importation of dangerous drugs and/or controlled precursors and essential chemicals, through on-line or cyber shops via the internet or cyberspace; (j) Conduct eradication programs to destroy wild or illegal growth of plants from which dangerous drugs may be extracted; (k) Initiate and undertake the formation of a nationwide organization which shall coordinate and supervise all activities against drug abuse in every province, city, municipality and barangay with the active and direct participation of all such local government units and nongovernmental organizations, including the citizenry, subject to the provisions of previously formulated programs of action against dangerous drugs; (l) Establish and maintain a national drug intelligence system in cooperation with law enforcement agencies, other government agencies/offices and local government units that will assist in its apprehension of big- time drug lords; (m) Establish and maintain close coordination, cooperation and linkages with international drug control and administration agencies and organizations, and implement the applicable provisions of international conventions and agreements related to dangerous drugs to which the Philippines is a signatory; (n) Create and maintain an efficient special enforcement unit to conduct an investigation, file charges and transmit evidence to the proper court, wherein members of the said unit shall possess suitable and adequate firearms for their
  • 150. CRIMINAL LAW REVIEWER 150 protection in connection with the performance of their duties: Provided, That no previous special permit for such possession shall be required; (o) Require all government and private hospitals, clinics, doctors, dentists and other practitioners to submit a report to it, in coordination with the Board, about all dangerous drugs and/or controlled precursors and essential chemicals which they have attended to for data and information purposes; (p) Coordinate with the Board for the facilitation of the issuance of necessary guidelines, rules and regulations for the proper implementation of this Act; (q) Initiate and undertake a national campaign for drug prevention and drug control programs, where it may enlist the assistance of any department, bureau, office, agency or instrumentality of the government, including government-owned and or –controlled corporations, in the anti- illegal drugs drive, which may include the use of their respective personnel, facilities, and resources for a more resolute detection and investigation of drug-related crimes and prosecution of the drug traffickers; and (r) Submit an annual and periodic reports to the Board as may be required from time to time, and perform such other functions as may be authorized or required under existing laws and as directed by the President himself/herself or as recommended by the congressional committees concerned. Section 85. The PDEA Academy. – Upon the approval of the Board, the PDEA Academy shall be established either in Baguio or Tagaytay City, and in such other places as may be necessary. The PDEA Academy shall be responsible in the recruitment and training of all PDEA agents and personnel. The Board shall provide for the qualifications and requirements of its recruits who must be at least twenty-one (21) years old, of proven integrity and honesty and a Baccalaureate degree holder. The graduates of the Academy shall later comprise the operating units of the PDEA after the termination of the transition period of five (5) years during which all the intelligence network and standard operating procedures of the PDEA has been set up and operationalized. The Academy shall be headed by a Superintendent, with the rank of Director. He/she shall be appointed by the PDEA Director General. Section 86. Transfer, Absorption, and Integration of All Operating Units on Illegal Drugs into the PDEA and Transitory Provisions. – The Narcotics Group of the PNP, the Narcotics Division of the NBI and the Customs Narcotics Interdiction Unit are hereby abolished; however they shall continue with the performance of their task as detail service with the PDEA, subject to screening, until such time that the organizational structure of the Agency is fully operational and the number of graduates of the PDEA Academy is sufficient to do the task themselves: Provided, That such personnel who are affected shall have the option of either being integrated into the PDEA or remain with their original mother agencies and shall, thereafter, be immediately reassigned to other units therein by the head of such agencies. Such personnel who are transferred, absorbed and integrated in the PDEA shall be extended appointments to positions similar in rank, salary, and other emoluments and privileges granted to their respective positions in their original mother agencies. The transfer, absorption and integration of the different offices and units provided for in this Section shall take effect within eighteen (18) months from the effectivity of this Act: Provided, That personnel absorbed and on detail service shall be given until five (5) years to finally decide to join the PDEA. Nothing in this Act shall mean a diminution of the investigative powers of the NBI and the PNP on all other crimes as provided for in their respective organic laws: Provided, however, That when the investigation being conducted by the NBI, PNP or any ad hoc anti-drug task force is found to be a violation of any of the provisions of this Act, the PDEA shall be the lead agency. The NBI, PNP or any of the task force shall immediately transfer the same to the PDEA: Provided, further, That the NBI, PNP and the Bureau of Customs shall maintain close coordination with the PDEA on all drug related matters. ARTICLE X Appropriations, Management of Funds and Annual Report Section 87. Appropriations. – The amount necessary for the operation of the Board and the PDEA shall be charged against the current year's appropriations of the Board, the National Drug Law Enforcement and Prevention Coordinating Center, the Narcotics Group of the PNP, the Narcotics Division of the NBI and other drug abuse units of the different law enforcement agencies integrated into the PDEA in order to carry out the provisions of this Act. Thereafter, such sums as may be necessary for the continued implementation of this Act shall be included in the annual General Appropriations Act. All receipts derived from fines, fees and other income authorized and imposed in this Act, including ten percent (10%) of all unclaimed and forfeited sweepstakes and lotto prizes but not less than twelve million pesos (P12,000,000.00) per year from the Philippine Charity Sweepstakes Office (PCSO), are hereby constituted as a special account in the general fund for the implementation of this Act: Provided, That no amount shall be disbursed to cover the operating expenses of the Board and other concerned agencies: Provided, further, That at least fifty percent (50%) of all the funds shall be reserved for assistance to government-owned and/or operated rehabilitation centers. The fines shall be remitted to the Board by the court imposing such fines within thirty (30) days from the finality of its decisions or orders. The unclaimed and forfeited prizes shall be turned over to the Board by the PCSO within thirty (30) days after these are collected and declared forfeited. A portion of the funds generated by the Philippine Amusement and Gaming Corporation (PAGCOR) in the amount of Five million pesos (P5,000,000.00) a
  • 151. CRIMINAL LAW REVIEWER 151 month shall be set aside for the purpose of establishing adequate drug rehabilitation centers in the country and also for the maintenance and operations of such centers: Provided, That the said amount shall be taken from the fifty percent (50%) share of the National Government in the income of PAGCOR: Provided, further, That the said amount shall automatically be remitted by PAGCOR to the Board. The amount shall, in turn, be disbursed by the Dangerous Drugs Board, subject to the rules and regulations of the Commission on Audit (COA). The fund may be augmented by grants, donations, and endowment from various sources, domestic or foreign, for purposes related to their functions, subject to the existing guidelines set by the government. Section 88. Management of Funds Under this Act; Annual Report by the Board and the PDEA. – The Board shall manage the funds as it may deem proper for the attainment of the objectives of this Act. In addition to the periodic reports as may be required under this Act, the Chairman of the Board shall submit to the President of the Philippines and to the presiding officers of both houses of Congress, within fifteen (15) days from the opening of the regular session, an annual report on the dangerous drugs situation in the country which shall include detailed account of the programs and projects undertaken, statistics on crimes related to dangerous drugs, expenses incurred pursuant to the provisions of this Act, recommended remedial legislation, if needed, and such other relevant facts as it may deem proper to cite. Section 89. Auditing the Accounts and Expenses of the Board and the PDEA. – All accounts and expenses of the Board and the PDEA shall be audited by the COA or its duly authorized representative. ARTICLE XI Jurisdiction Over Dangerous Drugs Cases Section 90. Jurisdiction. – The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of this Act. The number of courts designated in each judicial region shall be based on the population and the number of cases pending in their respective jurisdiction. The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act. The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing. When the preliminary investigation is conducted by a public prosecutor and a probable cause is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within forty-eight (48) hours from the date of receipt of the records of the case. Trial of the case under this Section shall be finished by the court not later than sixty (60) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case for resolution. Section 91. Responsibility and Liability of Law Enforcement Agencies and other Government Officials and Employees in Testifying as Prosecution Witnesses in Dangerous Drugs Cases. – Any member of law enforcement agencies or any other government official and employee who, after due notice, fails or refuses intentionally or negligently, to appear as a witness for the prosecution in any proceedings, involving violations of this Act, without any valid reason, shall be punished with imprisonment of not less than twelve (12) years and one (1) day to twenty (20) years and a fine of not less than Five hundred thousand pesos (P500,000.00), in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body. The immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than Ten thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned, the former does not exert reasonable effort to present the latter to the court. The member of the law enforcement agency or any other government employee mentioned in the preceding paragraphs shall not be transferred or re- assigned to any other government office located in another territorial jurisdiction during the pendency of the case in court. However, the concerned member of the law enforcement agency or government employee may be transferred or re- assigned for compelling reasons: Provided, That his/her immediate superior shall notify the court where the case is pending of the order to transfer or re-assign, within twenty-four (24) hours from its approval; Provided, further, That his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than Ten thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office, should he/she fail to notify the court of such order to transfer or re-assign. Prosecution and punishment under this Section shall be without prejudice to any liability for violation of any existing law. Section 92. Delay and Bungling in the Prosecution of Drug Cases. – Any government officer or employee tasked with the prosecution of drug-related cases under this act, who, through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal of the said drug cases, shall suffer the penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years
  • 152. CRIMINAL LAW REVIEWER 152 without prejudice to his/her prosecution under the pertinent provisions of the Revised Penal Code. Section 93. Reclassification, Addition or Removal of Any Drug from the List of Dangerous Drugs. – The Board shall have the power to reclassify, add to or remove from the list of dangerous drugs. Proceedings to reclassify, add, or remove a drug or other substance may be initiated by the PDEA, the DOH, or by petition from any interested party, including the manufacturer of a drug, a medical society or association, a pharmacy association, a public interest group concerned with drug abuse, a national or local government agency, or an individual citizen. When a petition is received by the Board, it shall immediately begin its own investigation of the drug. The PDEA also may begin an investigation of a drug at any time based upon the information received from law enforcement laboratories, national and local law enforcement and regulatory agencies, or other sources of information. The Board after notice and hearing shall consider the following factors with respect to each substance proposed to be reclassified, added or removed from control: (a) Its actual or relative potential for abuse; (b) Scientific evidence of its pharmacological effect if known; (c) The state of current scientific knowledge regarding the drug or other substance; (d) Its history and current pattern of abuse; (e) The scope, duration, and significance of abuse; (f) Risk to public health; and (g) Whether the substance is an immediate precursor of a substance already controlled under this Act. The Board shall also take into accord the obligations and commitments to international treaties, conventions and agreements to which the Philippines is a signatory. The Dangerous Drugs Board shall give notice to the general public of the public hearing of the reclassification, addition to or removal from the list of any drug by publishing such notice in any newspaper of general circulation once a week for two (2) weeks. The effect of such reclassification, addition or removal shall be as follows: (a) In case a dangerous drug is reclassified as precursors and essential chemicals, the penalties for the violations of this Act involving the two latter categories of drugs shall, in case of conviction, be imposed in all pending criminal prosecutions; (b) In case a precursors and essential chemicals is reclassified as dangerous drug, the penalties for violations of the Act involving precursors and essential chemicals shall, in case of conviction, be imposed in all pending criminal prosecutions; (c) In case of the addition of a new drug to the list of dangerous drugs and precursors and essential chemicals, no criminal liability involving the same under this Act shall arise until after the lapse of fifteen (15) days from the last publication of such notice; (d) In case of removal of a drug from the list of dangerous drugs and precursors and essential chemicals, all persons convicted and/or detained for the use and/or possession of such a drug shall be automatically released and all pending criminal prosecution involving such a drug under this Act shall forthwith be dismissed; and (e) The Board shall, within five (5) days from the date of its promulgation submit to Congress a detailed reclassification, addition, or removal of any drug from the list of dangerous drugs. ARTICLE XII Implementing Rules and Regulations Section 94. Implementing Rules and Regulations. – The present Board in consultation with the DOH, DILG, DOJ, DepEd, DSWD, DOLE, PNP, NBI, PAGCOR and the PCSO and all other concerned government agencies shall promulgate within sixty (60) days the Implementing Rules and Regulations that shall be necessary to implement the provisions of this Act. ARTICLE XIII Final Provisions Section 95. Congressional Oversight Committee. – There is hereby created a Congressional Oversight Committee composed of seven (7) Members from the Senate and seven (7) Members from the House of Representatives. The Members from the Senate shall be appointed by the Senate President based on the proportional representation of the parties or coalitions therein with at least two (2) Senators representing the Minority. The Members from the House of Representatives shall be appointed by the Speaker, also based on proportional representation of the parties or coalitions therein with at least two (2) Members representing the Minority. The Committee shall be headed by the respective Chairpersons of the Senate Committee on Public Order and Illegal Drugs and the House of Representatives Committee on Dangerous Drugs. Section 96. Powers and Functions of the Oversight Committee. – The Oversight Committee on Dangerous Drugs shall, in aid of legislation, perform the following functions, among others: (a) To set the guidelines and overall framework to monitor and ensure the proper implementation of this Act; (b) To ensure transparency and require the submission of reports from government agencies concerned on the conduct of programs, projects and policies relating to the implementation of this act; (c) To approve the budget for the programs of the Oversight Committee on Dangerous Drugs and all disbursements therefrom, including compensation of all personnel; (d) To submit periodic reports to the President of the Philippines and Congress on the implementation of the provisions of this Act; (e) To determine inherent weaknesses in the law and recommend the necessary
  • 153. CRIMINAL LAW REVIEWER 153 remedial legislation or executive measures; and (f) To perform such other duties, functions and responsibilities as may be necessary to effectively attain the objectives of this Act. Section 97. Adoption of Committee Rules and Regulations, and Funding. – The Oversight Committee on Dangerous Drugs shall adopt its internal rules of procedure, conduct hearings and receive testimonies, reports, and technical advice, invite or summon by subpoena ad testificandum any public official, private citizen, or any other person to testify before it, or require any person by subpoena duces tecum documents or other materials as it may require consistent with the provisions of this Act. The Oversight Committee on Dangerous Drugs shall be assisted by a secretariat to be composed by personnel who may be seconded from the Senate and the House of Representatives and may retain consultants. To carry out the powers and functions of the Oversight Committee on Dangerous Drugs, the initial sum of Twenty-five million pesos (P25,000,000.00) shall be charged against the current appropriations of the Senate. Thereafter, such amount necessary for its continued operations shall be included in the annual General Appropriations Act. The Oversight Committee on Dangerous Drugs shall exist for a period of ten (10) years from the effectivity of this Act and may be extended by a joint concurrent resolution. Section 98. Limited Applicability of the Revised Penal Code. – Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death. Section 99. Separability Clause. – If for any reason any section or provision of this Act, or any portion thereof, or the application of such section, provision or portion thereof to any person, group or circumstance is declared invalid or unconstitutional, the remainder of this Act shall not be affected by such declaration and shall remain in force and effect. Section 100. Repealing Clause. – Republic Act No. 6425, as amended, is hereby repealed and all other laws, administrative orders, rules and regulations, or parts thereof inconsistent with the provisions of this Act, are hereby repealed or modified accordingly. Section 101. Amending Clause. – Republic Act No. 7659 is hereby amended accordingly. Section 102. Effectivity. – This Act shall take effect fifteen (15) days upon its publication in at least two (2) national newspapers of general circulation.
  • 154. CRIMINAL LAW REVIEWER 154   CCCRRRIIIMMMIIINNNAAALLL LAW BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco •Mara KriskaChen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan •Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages Criminal Law 2 UP LAW BAR OPERATIONS COMMISSION BAR REVIEWER UP LAW2012 CRIMINAL LAW TEAM 2012 Faculty Editor | Prof. Jay Batongbacal Subject Heads | Camille Umali • Charmaine Sto. Domingo LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes
  • 155. CRIMINAL LAW REVIEWER 155Criminal Law 2 CRIMINAL LAW Criminal Law 1 Criminal Law 2 I. Crimes against National Security II. Crimes against Fundamental Laws of the State III. Crimes against Public Order IV. Crimes against Public Interest V. Crimes relative to Opium and other Prohibited Drugs VI. Crimes against Public Morals VII. Crimes committed by Public Officers VIII. Crimes against Persons IX. Crimes against Personal Liberty and Security X. Crimes against Property XI. Crimes against Chastity XII. Crimes against Civil Status XIII. Crimes against Honor XIV. Criminal Negligence Title I. Crimes against National Security and the Law of Nations CRIMES AGAINST SECURITY: (1) Art. 114: Treason (2) Art. 115: Conspiracy and Proposal to Commit Treason (3) Art. 116: Misprision of Treason (4) Art. 117: Espionage CRIMES AGAINST THE LAW OF NATIONS (1) Art. 118: Inciting to War or Giving Motives for Reprisals (2) Art. 119: Violation of Neutrality (3) Art. 120: Correspondence with Hostile Country (4) Art. 121: Flight to Enemy‘s Country (5) Art. 122: Piracy in General and Mutiny on the High Seas or in Philippine Waters (6) Art. 123: Qualified Piracy Remember: The crimes under this title can be prosecuted even if the criminal act or acts were committed outside the Philippine territorial jurisdiction. This is one of the instances where the RPC may be given extra-territorial application under Article 2 (5) thereof. However, prosecution can proceed only if the offender is: (1) within Philippine territory, OR (2) brought to the Philippines pursuant to an extradition treaty. Crimes against national security can be tried only in the Philippines, as there is a need to bring the offender here before he can be made to suffer the consequences of the law. In the case of crimes against the law of nations, the offender can be prosecuted whenever he may be found because the crimes are regarded as committed against humanity in general. The acts against national security may be committed abroad and still be punishable under our law. General rule: Almost all of these are crimes committed in times of war. Exceptions: The following can be committed in times of peace: (1) Espionage (Art 117) – This is also covered by Commonwealth Act No. 616 which punishes conspiracy to commit espionage. (2) Inciting to War or Giving Motives for Reprisals (Art 118) – This can be committed even if the Philippines is not a participant. (3) Violation of Neutrality (Art. 119) – The Philippines is not a party to an on-going war. A. Crimes against Security 1. Article 114 – Treason MODE 1: Levying War Elements: (1) The offender is a Filipino or resident alien (2) There is a war in which the Philippines is involved (3) The offender levies war against the government MODE 2: Adherence to the Enemies Elements: (1) The offender is a Filipino or resident alien (2) There is a war in which the Philippines is involved (3) That the offender adheres to the enemies, giving them aid or comfort Requirements of ―levying war‖ (1) Actual assembling of men; (2) To execute a treasonable design by force; (3) Intent is to deliver the country in whole or in part to the enemy; and (4) Collaboration with foreign enemy or some foreign sovereign Two ways of proving treason (1) Testimony of at least two witnesses to the same overt act; or (2) Confession of accused in open court. (3) Circumstances surrounding the act Jurisprudence: What acts constitute treason?
  • 156. CRIMINAL LAW REVIEWER 156 To be treasonous, the extent of aid and comfort given to the enemies must be to render assistance to them as enemies and not as individuals, in the furtherance of the enemies’ hostile designs. Intent of disloyalty is a vital ingredient in the crime of treason, which in the absence of admission may be gathered from the nature and circumstances of each particular case. [People vs. Perez] Testimony required to convict a person for treason The mere fact of having joined a Makapili organization is evidence of both adherence to the enemy and giving him aid and comfort. At the same time, being a Makapili is in itself constitutive of an overt act. The crime of treason was committed if he placed himself at the enemy's call to fight side by side with him when the opportune time came even though an opportunity never presented itself. However, membership as a Makapili, as an overt act, must be established by the deposition of two witnesses. Adherence need not be proven by two witness testimonies – may be inferred from one witness, or from the nature of the act itself or other circumstances [People vs. Adriano] Treason cannot be complexed; testimony required to convict a person for treason Treason requires concurrence between adherence to the enemy & giving aid & comfort. Giving aid & comfort requires some kind of action, deed or physical activity usually punishable by law as opposed to a mental operation. If an act is charged as an element of treason, that act cannot be the subject of a separate punishment or used to increase the penalty of treason Separate prosecution for murder or physical injuries may be pursued if they are unrelated to treasonous intent. The government should elect to prosecute the accused specifically for those crimes instead of relying on them as elements of treason. Testimonies of the witnesses should refer to the same overt act. [People vs. Prieto] Inherent acts in treason shall not be appreciated as aggravating The crime of treason is of such a nature that it may be committed by one single act, by a series of acts, or by several series thereof, not only in a single time, but in different times, it being a continuous crime. The presence of the aggravating circumstances of treachery, the aid of armed persons to insure or afford impunity, and deliberately augmenting the crimes by causing other wrongs not necessary in the commission thereof are inherent in the crime of treason and thus shall not be appreciated as aggravating circumstances. [People vs Victoria] NOTE: There can be no treason through negligence. [Cramer v. US] 2. Article 115 - Conspiracy and Proposal to Commit Treason Elements of conspiracy to commit treason: (1) There is a war in which the Philippines is involved (2) At least two persons come to an agreement to – (a) Levy war against the government; or (b) Adhere to the enemies, giving them aid or comfort (3) That person proposes its execution to other persons (4) They decide to commit it Elements of proposal to commit treason (1) There is a war in which the Philippines is involved (2) At least one person decides to – (a) Levy war against the government; or (b) Adhere to the enemies, giving them aid or comfort 3. Article 116 - Misprision of Treason (asked once during 1994-96) Elements: (1) Offender owes allegiance to the government, and is not a foreigner (2) He has knowledge of conspiracy to commit treason against the government (3) He conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province in which he resides, or the mayor or fiscal of the city in which he resides Remember: Misprision of treason is a crime that may be committed only by citizens of the Philippines. The essence of the crime is that there are persons who conspire to commit treason and the offender knew this and failed to make the necessary report to the government within the earliest possible time. What is required is to report it as soon as possible. The criminal liability arises if the accused learned of the treasonous activity while still at the conspiratorial stage because if he learned of the treason when it had already erupted into an overt act, then the implication is that the government is already aware of it. Any person in authority having the equivalent jurisdiction (of a mayor, fiscal or governor), like a provincial commander, will already negate criminal liability.
  • 157. CRIMINAL LAW REVIEWER 157 Blood relationship is always subservient to national security. Article 2019 does not apply in this case because persons found liable for this crime are not considered accessories, but as principals. Under the Revised Penal Code, there is no crime of misprision of rebellion. 4. Article 117 – Espionage MODE 1: By a private individual Elements: (1) That the offender enters a warship, fort, or naval or military establishment or reservation (2) That he has no authority therefor (3) That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines MODE 2: By a public officer Elements: (1) That the offender is a public officer (2) That he has in his possession the articles, data or information of a confidential nature relative to the defense of the Philippines, by reason of the public office he holds (3) That he discloses their contents to a representative of a foreign nation B. Crimes against the Law of Nations 1. Article 118 - Inciting to War or Giving Motives for Reprisals Elements: (1) Offender performs unlawful or unauthorized acts (2) The acts provoke or give occasion for (a) A war involving or liable to involve the Philippines; or (b) Exposure of Filipino citizens to reprisals on their persons or property 2. Article 119 - Violation of Neutrality Elements (1) There is a war in which the Philippines is 19 Art. 20. Accessories who are exempt from criminal liability. — The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of paragraph 1 of the next preceding article. not involved (2) There is a regulation issued by a competent authority to enforce neutrality (3) Offender violates the regulation Neutrality – takes no part in a contest of arms going on between other countries 3. Article 120 - Correspondence with Hostile Country Elements: (1) It is in time of war in which the Philippines is involved (2) Offender makes correspondence with an enemy country or territory occupied by enemy troops (3) The correspondence is either – (a) Prohibited by the government (b) Carried on in ciphers or conventional signs; or (c) Containing notice or information which might be useful to the enemy Correspondence – communication by means of letters which pass between those who have friendly or business relations 4. Article 121 - Flight to Enemy's Country Elements: (1) There is a war in which the Philippines is involved (2) Offender must be owing allegiance to the government (3) Offender attempts to flee or go to enemy country (4) Going to the enemy country is prohibited by competent authority 5. Article 122 - Piracy in General and Mutiny on the High Seas or in Philippine Waters Elements: (1) The vessel is on the high seas or Philippine waters (2) Offenders are neither members of its complement nor passengers of the vessel (3) Offenders either – (a) Attack or seize that vessel; or (b) Seize the whole or part of its cargo, its equipment or personal belongings of its complement or passengers (4) There is intent to gain Acts Punished in Piracy: (1) Attacking or seizing a vessel on the high seas or in Philippine waters (2) Seizing the whole or part of its cargo, complement or passengers while the vessel is on the high seas or in Philippine waters
  • 158. CRIMINAL LAW REVIEWER 158 Abetting Piracy In Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who knowingly and in any manner aids or protects pirates, such as giving them information about the movement of the police or other peace officers of the government, or acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; or who directly or indirectly abets the commission of piracy. Also, it is expressly provided in the same section that the offender shall be considered as an accomplice of the principal offenders and punished in accordance with the Revised Penal Code. This provision of PD No. 532 with respect to piracy in Philippine waters has not been incorporated into the RPC. Neither may it be considered repealed by RA 7659 since there is nothing in the amendatory law which is inconsistent with said section. Apparently, there is still the crime of abetting piracy in Philippine waters under PD No. 532. 6. Article 123 - Qualified Piracy (Asked twice 1983-90; once 2000-06) Elements: (1) The vessel is on the high seas or Philippine waters (2) Offenders may or may not be members of its complement, or passengers of the vessel (3) Offenders either – (a) Attack or seize the vessel; or (b) Seize the whole or part of its cargo, its equipment, or personal belongings of its crew or passengers (4) The preceding were committed under any of the following circumstances: (a) Whenever they have seized a vessel by boarding or firing upon the same; (b) Whenever the pirates have abandoned their victims without means of saving themselves; or (c) Whenever the crime is accompanied by murder, homicide, physical injuries or rape If any of the circumstances in Article 123 is present, piracy is qualified. Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and cannot be punished as separate crimes, nor can they be complexed with piracy. Although Article 123 refers to qualified piracy, there is also the crime of qualified mutiny. Mutiny is qualified under the following circumstances: (1) When the offenders abandoned the victims without means of saving themselves; or (2) When the mutiny is accompanied by rape, murder, homicide, or physical injuries Note: The first circumstance which qualifies piracy does not apply to mutiny. See also: (1) PD 532: Anti-Piracy and Anti-Highway Robbery (2) RA 6235: Anti-Hijacking Law (3) RA 9372: Human Security Act of 2007 Title II. Crimes against Fundamental Laws of the State (1) Art. 124: Arbitrary Detention (2) Art. 125: Delay in the Delivery Of Detained Persons to the Proper Judicial Authorities (3) Art. 126: Delaying Release (4) Art. 127: Expulsion (5) Art. 128: Violation of Domicile (6) Art.129: Search Warrants Maliciously Obtained and Abuse in the Service of those Legally Obtained (7) Art. 130: Searching Domicile Without Witnesses (8) Art. 131: Prohibition, Interruption and Dissolution of Peaceful Meetings (9) Art. 132: Interruption of Religious Worship (10) Art. 133: Offending the Religious Feelings Crimes under this title are those that violate certain provisions of the Bill of Rights. All offenses under this title can only be committed by public officers except offending the religious feelings under Article 133. The primary offender in ARTICLES 124-132 is a public officer acting under supposed exercise of official functions, albeit illegally. A private person may be liable under these articles ONLY WHEN he: (1) Conspires with a public officer; OR (2) He becomes an accomplice or accessory to said crimes ARTICLE 133 can be committed by EITHER a public officer OR a private person. 1. Article 124 - Arbitrary Detention (asked twice 1975-82; once 1991-93; once 2000-06) Elements: (1) That the offender is a public officer or employee (2) That he detains a person (3) That the detention is without a legal ground The Crime of Arbitrary Detention assumes several forms: (1) Detaining a person without legal grounds (Article 124);
  • 159. CRIMINAL LAW REVIEWER 159 (2) Having arrested the offended party for legal grounds but without warrant of arrest, and the public officer does not deliver the arrested person to the proper judicial authority within the period of 12, 18, or 36 hours, as the case may be (Article 125); or (3) Delaying release by competent authority with the same period mentioned in number 2 (Article 126). A public officer is deemed such when he is acting within the bounds of his official authority or function. A police officer who employs force in excess of what is necessary is acting outside the bounds of his duties and is considered acting in his private capacity. [Boado, Comprehensive Reviewer in Criminal Law] Note: In the crime of arbitrary detention, although the offender is a public officer, not any public officer can commit this crime. Only those public officers whose official duties carry with it the authority to make an arrest and detain persons can be guilty of this crime. In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains another was held to be guilty of the crime of arbitrary detention. This is because he is a person in authority vested with jurisdiction to maintain peace and order within his barangay. [Milo v. Salanga (1987)] There must be an actual restraint of liberty of the offended party. The crime committed is only grave or light threats if the offended party may still go to the place where he wants to go, even though there have been warnings. If the offender falsely imputes a crime against a person to be able to arrest him and appear not determined to file a charge against him, the crime is arbitrary detention through unlawful arrest. [Boado, Comprehensive Reviewer in Criminal Law] A case where a DENR team was invited to Mayor Astorga‘s house from 530pm to 230am for dinner and drinks, does not fall under Arbitrary Detention. Absent any physical restraint, an element of the said crime is fear. No record on evidence showed that the mayor instilled fear into the minds of the DENR team while they were in the Mayor‘s house. [Astorga v. People (2004)] Difference between Arbitrary Detention, Illegal Detention and Unlawful Arrest See Annex A. 2. Article 125 - Delay in the Delivery of Detained Persons to the Proper Judicial Authorities Elements: (1) Offender is a public officer or employee (2) He detains a person for some legal ground (3) He fails to deliver such person to the proper judicial authorities within – (a) 12 hours for light penalties (b) 18 hours for correctional penalties (c) 36 hours for afflictive or capital penalties This is applicable ONLY WHEN the arrest is without a warrant. At the beginning, the detention is legal since it is in the pursuance of a lawful arrest. Detention becomes arbitrary when the: (1) Applicable period lapses (2) Without the arresting officer filing a formal charge with the proper court. The periods stated are counted only when the prosecutor‘s office is ready to receive the complaint or information. Nighttime is NOT included in the period. Jurisprudence: ―Delivery‖ means the filing of correct information with the proper court (or constructive delivery -- turning over the person arrested to the jurisdiction of the court). Purpose is to determine whether the offense is bailable or not. (Upon delivery, judge or court acquires jurisdiction to issue an order of release or of commitment of prisoner.) [Sayo v. Chief of Police (1948)] The elements of custodial investigation are: (1) The suspect is deprived of liberty in any significant manner; (2) The interrogation is initiated by law enforcement authorities; (3) The interrogation is inculpatory in character. [People v. Tan (1998)] Where the invitation comes from a powerful group composed predominantly of ranking military officers and the designated interrogation site is a military camp, the same can be easily taken NOT as a strictly voluntary invitation. It is an authoritative command that one can only defy at one’s peril. [Sanchez v. Demetriou (1993)] 3. Article 126 - Delaying Release Elements: (1) Offender is a public officer or employee (2) There is a: (a) Judicial or executive order for the release of a prisoner or detention prisoner, OR (b) A proceeding upon a petition for the liberation of such person (3) Offender without good reason delays – (a) The service of the notice of such order
  • 160. CRIMINAL LAW REVIEWER 160 to the prisoner (b) The performance of such judicial or executive order for the release of the prisoner; OR (c) The proceedings upon a petition for the release of such person 4. Article 127 – Expulsion Elements: (1) Offender is a public officer or employee (2) He either – (a) Expels any person from the Philippines; OR (b) Compels a person to change residence (3) Offender is not authorized to do so by law The city mayor of Manila committed the crime of expulsion when he ordered certain prostitutes to be transferred to Davao WITHOUT observing due process since they have not been charged with any crime. [Villavicencio v. Lukban (1919)] The right to return to one‘s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the Liberty of Abode and the right to travel. However, it is a well-settled view that the right to return may be considered as a generally accepted principle of international law and, under the Constitution, forms part of the law of the land. However, it is distinct and separate from the right to travel. The constitutional guarantees invoked by the Marcoses are neither absolute nor inflexible for the exercise of such freedoms has limits and must adjust to the concerns which involve the public interest. [Marcos v. Manglapus (1989)] 5. Article 128 - Violation of Domicile Acts punished: (1) Entering any dwelling against the will of the owner thereof (2) Searching papers or other effects found therein without the previous consent of such owner, OR (3) Refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same Elements COMMON to the three acts: (1) Offender is a public officer or employee (2) He is not authorized by judicial order – (a) To enter the dwelling; (b) To make a search therein for papers or other effects; or (c) He refuses to leave, after having surreptitiously entered such dwelling and been required to leave the same Qualifying circumstances: (1) Night time (2) Papers or effects not constituting evidence of a crime are not returned immediately after the search made by the offender RULE 113 OF THE REVISED RULES OF COURT: a public officer, who breaks into the premises, incurs no liability WHEN a person to be arrested enters said premises and closes it thereafter, provided that the officer first gives a notice of arrest. The public officer should have first given notice of an arrest. According to People vs. Doria (1999) and People vs. Elamparo (2000), the following are the accepted exceptions to the warrant requirement: (1) Search incidental to an arrest; (2) Search of moving vehicles; (3) Evidence in plain view; (4) Stop and frisk; (5) Customs searches; AND (6) Consented warrantless search. [M]ere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold interest: (1) The general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) The more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. [Malacat v. CA (1997)] ―Against the will‖ means that the offender ignored the prohibition of the owner which may be express or implied as when the door is closed even though not locked. [Boado, Comprehensive Reviewer in Criminal Law] 6. Article 129 - Search Warrants Maliciously Obtained, and Abuse in the Service of Those Legally Obtained Elements of procuring a search warrant without just cause: (1) Offender is a public officer or employee (2) He procures a search warrant (3) There is no just cause Elements of exceeding authority or using unnecessary severity in executing a search
  • 161. CRIMINAL LAW REVIEWER 161 warrant legally procured: (1) Offender is a public officer or employee (2) He has legally procured a search warrant (3) He exceeds his authority or uses unnecessary severity in executing the same 7. Article 130 - Searching Domicile without Witnesses Elements: (1) Offender is a public officer or employee (2) He is armed with search warrant legally procured (3) He searches the domicile, papers or other belongings of any person (4) The owner, or any members of his family, or two witnesses residing in the same locality are not present RULE 116: SEARCH AND SEIZURE A search warrant is an order in writing - (1) Signed by a judge (2) Directed to a peace officer, commanding him to search for personal property described therein and bring it before the court Requisites for issuing a search warrant: (1) Probable cause, in connection with one specific offense, to be determined personally by the judge AFTER examination under oath or affirmation of the complainant and the witness he may produce (2) Particular description of: (a) Place to be searched; AND (b) Things to be seized which may be anywhere in the Philippines An officer may break open any outer or inner door or window of a house or any part of a house or anything therein WHEN these circumstances concur: (1) He is refused admittance to the place of directed search; (2) His purpose is to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein; and (3) He has given notice of his purpose and authority. The warrant must direct that it be served in the daytime. HOWEVER, it can be served at any time of the day or night WHEN the affidavit asserts that the property is on the person or in the place ordered to be searched. A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made. In the absence of such occupant, the officer must: (1) leave a receipt in the place in which he found the seized property; (2) In the presence of at least two witnesses of sufficient age and discretion residing in the same locality. 8. Article 131 - Prohibition, Interruption and Dissolution of Peaceful Meetings Elements: (1) Offender is a public officer or employee (2) He performs any of the following acts: (a) Prohibiting or interrupting, without legal ground, the holding of a peaceful meeting, or by dissolving the same (b) Hindering any person from joining any lawful association, or from attending any of its meetings (c) Prohibiting or hindering any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances The government has a right to require a permit before any gathering can be made. HOWEVER, the government only has regulatory, NOT PROHIBITORY, powers with regard to such requirement. The permit should state the day, time, and place of the gathering. If the permit is denied arbitrarily, OR the officer dictates the place where the meeting is to be held, this article is VIOLATED. If in the course of the assembly, which started out peacefully, the participants committed illegal acts like oral defamation or inciting to sedition, a public officer or law enforcer can stop or dissolve the meeting. Two criteria to determine whether this article would be violated: (1) Dangerous tendency rule – applied during times of national unrest such as to prevent coup d‘etat. (2) Clear and present danger rule – applied during times of peace. Stricter rule. 9. Article 132 - Interruption of Religious Worship Elements: (1) Offender is a public officer or employee (2) Religious ceremonies or manifestations of any religion are about to take place or are going on (3) Offender prevents or disturbs the same
  • 162. CRIMINAL LAW REVIEWER 162 10. Article 133 - Offending the Religious Feelings Elements: (1) Acts complained of were performed in a place devoted to religious worship, OR during the celebration of any religious ceremony (2) The acts must be notoriously offensive to the feelings of the faithful Jurisprudence: A Catholic priest complained against a group that passed by the churchyard as they were holding the funeral rites of a Church of Christ member. An act is NOTORIOUSLY OFFENSIVE to the religious feelings when a person: (1) Ridicules or makes light of anything constituting religious dogma (2) Works or scoffs at anything devoted to religious ceremonies (3) Plays with or damages or destroys any object of veneration of the faithful WON an act is offensive to the religious feelings, is a question of fact which must be adjudged only according to the feelings of the Catholics and not those of other faithful ones. [People v. Baes (1939)] Laurel Dissent: The determination should NOT be made to depend upon a more or less broad or narrow conception of any given religion. Facts and circumstances should be viewed through an unbiased judicial criterion. (Note: This later became the majority decision in People v. Tengson) The crime is only UNJUST VEXATION when the act is NOT directed at the religious belief itself and there is no intention of causing so serious a disturbance as to interrupt a religious ceremony. [People v. Nanoy] See also: (1) RA 9372 : Human Security Act (2) RA 9745: Anti-Torture Act Title III. Crimes against Public Order (1) Article 134 - Rebellion/Insurrection (2) Article 134-A - Coup d‘ État (3) Article 135 - Penalty for Rebellion, Insurrection or Coup d‘ État (4) Article 136 - Conspiracy and Proposal to Commit Coup d‘ État, Rebellion or Insurrection (5) Article 137 - Disloyalty of Public Officers or Employees (6) Article 138 - Inciting to Rebellion or Insurrection (7) Article 139 – Sedition (8) Article 141 - Conspiracy to Commit Sedition (9) Article 142 – Inciting to Sedition (10) Article 140 - Persons Liable for Sedition (11) Article 143 - Acts Tending to Prevent the Meeting of the Congress of the Philippines and Similar Bodies (12) Article 144 - Disturbance of Proceedings (13) Article 145 - Violation of Parliamentary Immunity (14) Article 146 - Illegal Assemblies (15) Article 147 - Illegal Associations (16) Article 148 - Direct Assault (17) Article 149 - Indirect Assault (18) Article 150 - Disobedience to Summons Issued by Congress, Its Committees or Subcommittees, by the Constitutional Commissions, Its Committees, Subcommittees or Divisions (19) Article 153 - Tumults and Other Disturbances of Public Order (20) Article 151 - Resistance and Disobedience to a Person in Authority or the Agents of Such Persons (21) Article 154 - Unlawful Use of Means of Publication and Unlawful Utterances (22) Article 156 - Delivering Persons from Jail (23) Article 155 - Alarms and Scandals (24) Article 157 - Evasion of Service of Sentence (25) Article 159 - Other Cases of Evasion of Service of Sentence (26) Article 158 - Evasion of Service of Sentence on the Occasion of Disorders, Conflagrations, Earthquakes, or Other Calamities (27) Article 160 - Quasi Recidivism A. Chapter I – Rebellion, Coup d’etat, Sedition and Disloyalty 1. Article 134 - Rebellion /Insurrection Elements:
  • 163. CRIMINAL LAW REVIEWER 163 (1) There is a public uprising and taking arms against the government; (2) The purpose of the uprising or movement is: (a) To remove from the allegiance to the government or its laws the Philippine territory or any part thereof, or any body of land, naval, or other armed forces; or (b) To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. Rebellion vs. Insurrection The object of rebellion is to completely overthrow and supplant the existing government. On the other hand, insurrection is a movement seeking to effect some change of minor importance, or to prevent the exercise of governmental authority with respect to particular matters or subjects [Reyes] Rule on Complexing of Rebellion: Rebellion cannot be complexed with, but absorbs other crimes committed in furtherance of rebellion. There is no complex crime of rebellion with murder and other common crimes. Jurisprudence: The doctrine laid down in People v. Hernandez remains good law. This prohibits the complexing of rebellion with any other offense committed in the occasion thereof, either as a means to its commission or as an unintended effect of an activity that constitutes rebellion. [Enrile v Salazar (1990)] All crimes, whether punishable under special or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and charged as separate crimes themselves. [Ponce Enrile v Amin (1990)] Both motive and overt acts are essential components of the crime of rebellion. If the political motive of a supposedly rebellious act cannot be sufficiently proven, the accused should be convicted of the common crime (e.g. murder) and not of rebellion. Rebellion is not covered by Art. 2 on extraterritorial jurisdiction. [People v. Lovedioro (1995)] Rebellion vs. Treason Rebellion Treason The levying of war against the government during peace time for any purpose mentioned in Art. 134 The levying of war against the government would constitute treason when performed to aid the enemy; it would also constitute adherence to the enemy, giving him aid and comfort Always involves taking up arms against the government. Mere adherence to the enemy giving him aid and comfort NOTE: No crime of misprision of rebellion. Rebellion vs. Subversion Rebellion Subversion Crime against pubic order Crime against national security There must be public uprising to overthrow the government Being officers and ranking members of subversive groups constitute subversion NOTE: There is no longer a crime of subversion by virtue of RA 7636, which repealed RA 1700. Rebellion vs. Sedition Rebellion Sedition There must be taking up of arms against the government. It is sufficient that the public uprising be tumultuous. The purpose is always political. The purpose may be political or social. NOTE : When any of the objectives of rebellion is pursued but there is no public uprising in the legal sense, the crime is direct assault of the first form. 2. Article 134-A - Coup d’ État (asked twice 1991-93 ; four times 1997-06) Elements: (1) Offender is a person or persons belonging to the military or police or holding any public office or employment; (2) It is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy or stealth; (3) The attack is directed against the duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities needed for the exercise and continued possession of power; (4) The purpose of the attack is to seize or diminish state power. Persons who may commit coup d‘etat: (1) It may be committed singly or collectively (2) Requires as a principal offender a member of the AFP, PNP, or a public officer with or without civilian support 3. Article 135 - Penalty for Rebellion, Insurrection or Coup d’ État Persons liable for rebellion, insurrection or coup d'etat (1) The leaders: (a) Any person who promotes, maintains or heads a rebellion or insurrection; or (b) Any person who leads, directs or commands others to undertake a coup d'etat;
  • 164. CRIMINAL LAW REVIEWER 164 (2) The participants: (a) Any person who participates or executes the commands of others in rebellion or insurrection; (b) Any person in the government service who participates or executes directions or commands of others in undertaking a coup d‘etat; (c) Any person not in the government service who participates, supports, finances, abets or aids in undertaking a coup d'etat. If under the command of unknown leaders, any person who directed the others, spoke for them, signed receipts and other documents issued in their name on behalf of the rebels shall be deemed a leader. Note: Mere silence or omission is not punishable. 4. Article 136 - Conspiracy and Proposal to Commit Coup d’ État, Rebellion or Insurrection Mode 1: Conspiracy to commit coup d’état, rebellion or insurrection Elements: (1) Two or more persons come to an agreement to swiftly attack or to rise publicly and take arms against the Government for any of the purposes of rebellion or insurrection; (2) They decide to commit it. Mode 2: Proposal to commit coup d’état, rebellion or insurrection Elements: (1) A person has decided to swiftly attack or to rise publicly and take arms against the Government for any of the purposes of rebellion or insurrection; (2) Such person proposes its execution to some other person or persons. Conspiracy vs. Proposal Conspiracy—when two or more persons come to an agreement to rise publicly and take arms against government for any of the purposes of rebellion and decide to commit it. Proposal—when the person who has decided to rise publicly and take arms against the government for any of the purposes of rebellion proposes its execution to some other person or persons. 5. Article 137 - Disloyalty of Public Officers or Employees Elements: (1) Offender is a public officer or employee; (2) Offender commits any of the following acts: (a) Failing to resist a rebellion by all the means in their power; (b) Continuing to discharge the duties of their offices under the control of the rebels (c) Accepting appointment to office under them. The crime presupposes rebellion committed by other persons. Offender must not be in conspiracy with the rebels. Effect of conspiracy: Public officer is himself guilty of rebellion. 6. Article 138 - Inciting to Rebellion or Insurrection Elements: (1) Offender does not take arms or is not in open hostility against the government; (2) He incites others to the execution of any of the acts of rebellion; (3) The inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end. NOTE: There is no crime of inciting to treason. Inciting to Rebellion vs. Proposal to Commit Rebellion Proposal to Commit Rebellion Inciting to Rebellion The offender induces another to commit rebellion. Rebellion should not be actually committed by the persons to whom it is proposed or who are incited. [Otherwise, they become principals by inducement in the crime of rebellion.] The person who proposes has decided to commit rebellion. There is no need that the offender has decided to commit rebellion. The person who proposes the execution of the crime uses secret means. The act of inciting is done publicly. 7. Article 139 - Sedition (asked once) Elements: (1) Offenders rise publicly and tumultuously; (2) Offenders employ force, intimidation, or other means outside of legal methods; (3) Purpose is to attain any of the following objects: (a) To prevent the promulgation or execution of any law or the holding of any popular election; (b) To prevent the national government or any provincial or municipal government or any public officer from exercising its or his functions, or prevent the execution of an administrative order; (c) To inflict any act of hate or revenge upon the person or property of any public officer or employee; (d) To commit, for any political or social end, any act of hate or revenge against private persons or any social classes; (e) To despoil for any political or social
  • 165. CRIMINAL LAW REVIEWER 165 end, any person, municipality or province, or the national government of all its property or any part thereof. Tumultuous: If caused by more than three persons who are armed or provided with the means of violence. (Art. 163) The purpose of this crime is not the overthrowing of the government but the violation of public peace. Under R.A. 8294, sedition absorbs the use of unlicensed firearm as an element thereof; hence, it is not an aggravating circumstance, and the offender can no longer be prosecuted for illegal possession of firearm. (Boado, Comprehensive Reviewer in Criminal Law). Sedition vs. Coup d’etat Sedition Coup d’etat There is no distinction as to who may commit; a private individual may commit the offense Offender belongs to the military or police or holding any public office or employment Primary purpose is to disturb public peace To seize or to diminish state power Sedition vs. Treason Sedition Treason It is the raising of commotions or disturbances in the State. It is the violation by a subject of his allegiance to