Crim Pro (Suarez Discussion)

CRIMINAL PROCEDURE

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

CRIMINAL PROCEDURE  Ateneo de Davao University | College of Law From the Discussions and Lectures of  Atty. Melissa Romana P. Suarez SY 2018-2019

Criminal Procedure It is a generic term to describe the network of laws and rules which governs the procedural administration of justice. As such, it treats of the rules and processes by which the criminal laws are enforced and by which the State prosecutes persons who violate such laws. Procedural law as applied to criminal law, “provides or regulates the steps which one who committed the crime is to be punished” (People v. Lacson, 400 SCRA 267). While criminal law declares what conduct is criminal as it defines crimes and prescribes punishments, criminal procedure lays down the  processes offender is made to answer for the crime committed.

Jurisdiction How do we define jurisdiction with reference to criminal cases? It is the  power and authority of the court to take cognizance of an offense and announce the sentence or judgment provided for by law after trying in the manner prescribed. When you talk about taking cognizance, it is to “try a case,” to pronounce a judgment, to issue a verdict of guilty or not guilty as to pronounce the sentence provided for by law. Suppose a  judge finds the accused guilty of homicide, can the judge sentence him to death? The answer is no, because it is not the penalty provided for by law. A judge has to pronounce the sentence provided for by law, after a trial. So, there must be a trial – full trial. 

Elements of Jurisdiction in Criminal Cases As evinced in Cruz v. Court of Appeals 388 SCRA 72, a reading of jurisprudence and treatises on the matter discloses the following basic requisites before a court can acquire jurisdiction over criminal cases: 1. Territorial Jurisdiction 2. Jurisdiction over the Subject Matter 3. Jurisdiction over the Person of the Accused

Jurisdiction over Subject Matter Refers to the authority of the court to hear and determine a particular criminal case, in simpler terms the jurisdiction over the offense charged.

Jurisdiction over the Person of the Accused Refers to the authority of the court over the person charged. This kind of  jurisdiction requires that the person charged with the offense must have been brought into its forum for trial forcibly by warrant of arrest of voluntary submission to the court.

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Court, Definition Is a body in the government to which the public administration of justice is delegated. Entity or body vested with a portion of the judicial power. Judge, Definition A public officer lawfully appointed to preside over a court for the purpose of administering the law. The jurisdiction however is vested in the court not the judge. The judge is the person and the court is the body.

Courts in the Philippines 1. Supreme Court 2. Court of Appeals; Sandiganbayan; Court of Tax Appeals 3. Regional Trial Court 4. Municipal Trial Court Some Special Courts in the Philippines 1. Probate Courts 2. Land Registration Courts 3. Tribal Courts 4. Family Courts Classification of Courts 1. Constitutional and Statutory Courts – there is only one 2. 3. 4. 5.

constitutional court, and it’s the Supreme Court. Superior and Inferior Courts – the hierarchy of courts arranged from MTC the least to SC. Original Court and Appellate Courts  – an original court is where you file an action for the first time, Court of Appeals is appellate, MTC is always an original court. Civil and Criminal Courts  – note that these are not separate courts, but on the subject matter. Courts of Law and Courts of Equity  –  – there are certain situations that the court is not merely of law but also of equity.

Functions of Courts In general, the court is tasked for the administration of justice. 1. The ascertainment or determination of relevant facts of the controversy; 2. The application of the law to those facts in order to resolve the controversy;

Judicial Power Judicial power is the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights.

Doctrine of Judicial Stability or Non-Interference No court has the authority to interfere by injunction with the  judgment of another another court of coordinate coordinate jurisdiction jurisdiction or of those with co-equal level. Example. When the case is filed in MTC A, it cannot be filed with any other MTC court, except in cases allowed by the Rules of Court or by law.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Doctrine of Primary Jurisdiction Courts will not determine a controversy involving a question within the jurisdiction of the administrative tribunal, when the question demands the exercise of sound administrative discretion requiring specialized knowledge and expertise of said administrative tribunal to determine technical and intricate matters.

Hearing and Trial, Distinguished When we mean by trial, it may refer to reception of evidence and other processes involved in the court proceedings. On the other hand a hearing may refer to the several stages of a case, this includes arraignment, pre-trial and of the like.

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In Trenas v. People, 664 SCRA 355, the place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction. It is a fundamental rule that for jurisdiction to be acquired in criminal cases, the offense should have been committed or any of one its essential ingredients should have been committed or within the territorial  jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside that limited territory.

 JURISDICTION

If evidence during trial shows that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.

The word  jurisdiction comes from the word  juris meaning law and the word dico meaning to speak or to say. The word literally translates to “I speak by the law,” in this regard it roughly means as the power over a particular thing, also the power to enforce a judgment. Jurisdiction is essential to remember because without jurisdiction a judgment by the court is null and void.

NOTE: For a complaint or information to be sufficient, the same must enable the court, through the allegations therein, to determinate that the offense was committed or any of its essential ingredients occurred at some place within the  jurisdiction of the court (Rule 110, 110, Section 6).

Jurisdiction

Types of Jurisdiction 1. General Jurisdiction – the authority of the court to hear all actions and suits (e.g. RTC). Special or Limited Jurisdiction  – the authority of the court to hear on specific cases.

2. Original Jurisdiction – this is where the case is initially filed, the inception and commencement of cases.  Appellate Jurisdiction – this is the power to review, reverse, revise the judicial decision of a lower court.

3. Exclusive Jurisdiction – that possessed by a court to the exclusion of all others (e.g. BP 22 cases to MTC). Concurrent or Coordinate – with other courts

Rules in Territorial Jurisdiction The rule places the venue of criminal cases either in the court of the municipality or territory: (a) Where the offense was committed, or (b) Where any of its essential ingredients occurred.

BP 129, Chapter II, Section 13 There are thirteen (13) Regional Trial Courts. Only 13 RTCs in the whole country. Why is it then that in the Hall of Justice, we have RTC 8,9, 10 and 33? These are mere branches of the RTC of Davao City and under Section 13 of BP 129 we belong to the 11th Judicial Region. “The Eleventh Judicial Region, consisting of the provinces of Davao del Norte, Davao Oriental, Davao del Sur, South Cotabato, and Surigao del Sur, and the cities of Davao, and General Santos”

ELEMENTS OF JURISDICTION IN CRIMINAL CASES In criminal cases, it is important to note that a court can only take cognizance of a criminal case when the three following elements are present in the case: 1. Territorial Jurisdiction 2. Jurisdiction over the Person 3. Jurisdiction over the Subject Matter

1. TERRITORIAL JURISDICTION Territorial Jurisdiction It is the limit of the geographical boundaries of a place, within which the court has jurisdiction to act judicially and outside of which his acts are null and void. A very important principle in relation to jurisdiction over the territory is that, in criminal cases, venue is jurisdiction and a court is bereft of jurisdiction to try an offense committed outside its limited territory.

Courts are limited to assumed jurisdiction over crimes committed within their territorial jurisdiction. Now under Section 14 of BP 129 it is stated that for the 11th Judicial Region there are 29 Region Trial Judges. So, if we look over the codal provisions it provides that for the 11 Judicial Region are as follows: “(l) Twenty-nine Regional Trial Judges shall be commissioned for the Eleventh Judicial Region. There shall be: Four branches (Branches I to IV) for the province of Davao del Norte, Branches I and II with seats at Tagum, Branch III in Nabunturan, and Branch IV in Panabo; Three branches (Branches V to VII) for the province of Davao Oriental, Branches V and VI with seats at Mati and Branch VII at Banganga; Fourteen branches (Branches VIII to XXI) for the province of Davao del Sur and the city of Dav ao, Branches VIII to XVII with seats at Davao City, Branches XVIII and XIX at Digos, Branch XX at Malita, and Branch XXI at Bansalan;

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO Five Branches (Branches XXII to XXVI) for the province of South Cotabato and the city of General Santos, Branches XXII and XXIII with seats at General Santos City, Branches XXIV and XXV at Koronadal, and Branch XXVI at Surallah; and Three branches (Branches XXVII to XXIX) for the province of Surigao del Sur, Branch XXVII with seat at Tandag, Branch XXVIII at Lianga, and Branch XXIX at Bislig.

Take note however that there is Branch XXXIII in Davao, it seems that we have been adding courts. So, branches VIII to XVII in Davao can exercise Territorial Jurisdiction over the crimes committed in Davao City. How is territorial jurisdiction determined? It is determined by the geographical area over which it presides. RTCs of Davao preside over Davao City and the fact the crime was committed or any of its essential ingredients took place within said area is an element of jurisdiction. In other words, Davao City RTCs exercise jurisdiction over crimes committed in Davao City.

Interim Rules According to Section 2, we have two lower courts  the RTC and MTCs. MTCs shall exercise jurisdiction over the city, municipality or the circuit of which judge thereof is appoint or designated.

MTC Jurisdiction (Chapter III, BP 129) There are Metropolitan Trial Courts (MeTC), Municipal Trial Courts (MTC) and the Municipal Circuit Trial Courts (MCTC). To outline the chapter, it provides for the following. Section 27 – MeTCs in NCR Section 28 – Other MeTCs Section 29 – MTCs in Cities, seven (7) MTCs for Davao City. Section 30 – MTC (not in cities) Section 31- MCTCs Q. How do you differentiate MTCs from RTCs?  In Davao it is easy because the MTC and RTCs herein have the same territorial jurisdiction. But there are areas in Mindanao which applies different. For example, in Samal there is no RTC there thus, RTC cases are tried in either Tagum or Panabo. In Kaputian, Samal there is an MTC. There are instances when a case in a municipality for RTC has not RTC in the municipality itself. 

CASE DISCUSSIONS ARANES v. JUDGE OCCIANO (2002) Territorial jurisdiction in a different municipality, although in same province, but outside jurisdiction of the judge. Judge Occiano solemnized the marriage in a municipality outside his territorial jurisdiction. Judge Aranes solemnized a marriage outside his territorial  jurisdiction at the request request of the parties, parties, thus the action action cannot be a legal basis for enforcement of actions because of lack of  jurisdiction of the judge in rendering the decision. decision.

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PEOPLE v. OLERMO (2003) This involved illegal recruitment in large scale without securing license, the crime cannot have convicted beyond RTC Valenzuela. Information was filed in RTC Valenzuela. She allegedly committed the crime and met the complainant in Quezon City. Yes, RTC of Valenzuela had jurisdiction over the crime of illegal recruitment in large scale against Marlene Olermo. The element of recruitment  took  took place in her office in Valenzuela, at least one of the elements. Since the action was filed of RTC Valenzuela where one of the ingredients took place, the jurisdiction already has attached, it has exclusive jurisdiction. 

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PURITA LIM v. JUDGE DUMLAO (2005) A municipal trial court judge has no authority to grant bail to an accused arrested outside of his territorial jurisdiction. In this case, the filed against RTC Santiago. Order of release should have released by RTC Santiago, no proof presented that he was absent. Judge Dumlao of MTC erred in approving bail and issuing the order of release. This is another city – San Mateo Isabela. It was filed in RTC.

MORILLO v. PEOPLE AND NATIVIDAD (2015) Natividad was charged for BP 22 of MTC Makati because the checks were delivered to Pampanga, thus, MTC of Makati has  jurisdiction of the case. BP 22 are considered as transitory or continuing crimes. Since the checks were drawn and issued in Pampanga but MTC Makati has jurisdiction. Even if brought to Makati and deposited the check there.

2. JURISDICTION OVER THE PERSON OF THE ACCUSED Jurisdiction over the Person of the Accused In criminal cases, the start is the accused and the court does not have to acquire jurisdiction upon anyone else when you talk about person unlike in civil cases.

Ways Court Acquire Jurisdiction over the Person of Accused 1. Voluntary appearance or surrender 2. Arrest Suppose X is charged with murder before the RTC of Davao City. Now, the next step that the judge would do is to issue a warrant of arrest. It is very important so that the court can have  jurisdiction over the case or else the judgment judgment is void. Now, if X finds out of the warrant against him, what he can do is to go to court and surrender and submit himself under the  jurisdiction of the court. Now suppose X has no idea of the warrant of arrest against him and he was arrested, the moment he is arrested, then the court again acquires jurisdiction over the person of the accused.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

CASE DISCUSSIONS

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Requisites for the Exercise of Jurisdiction and How the Court Acquires such Jurisdiction

TABAO v. JUDGE BARATAMAN (2002) Here, Samsodin was accused of the crime abandonment of minor. Now, before he could be arrested arrested and before he made voluntary appearance before the court, the judge issued an order granting the motion for bail. Now, the thing is, normally, what is the purpose of voluntary appearing before the court? If a warrant of arrest is already released. X will go there not only to voluntary surrender but apply for bail so that he could have temporary liberty. But what happened here in this case? Samsodin, never appeared before the court. He sent his daddy to go there and apply for bail. And the judge granted it, without seeing his face at all. SC said that the court did not have jurisdiction over the  person of the accused and therefore anything that is i ssued, any order that is issued by the court will not bind the accused. So, he cannot order that he be granted bail if the court does not have  jurisdiction over his person yet.

TALAG v. JUDGE REYES (2004) We have this guy who is accused of estafa and BP22 and he was already charged in court and normally as already mentioned, after a person is charged in court, the court will issue a warrant of arrest. Now Mr. Talag, he filed the motion to defer the issuance of warrant of arrest because he wanted maybe a reinvestigation or remand the case. He wanted the prosecutor to reinvestigate. In this case, his prayer was to defer the issuance of the warrant, but the judge did not grant the motion and the judge issued the warrant against him. Precisely, to acquire jurisdiction over your person, the court has to issue a warrant of arrest. So that you will either be arrested, or you will voluntarily surrender. But to say the court cannot issue the warrant due to not being able to acquire jurisdiction over your person is wrong. Compared to our earlier case in Tabao vs. Barataman, the judge cannot grant the motion for bail because that particular act already assumes that if one grant the motion for bail, there is already an assumption that jurisdiction over the person was already acquired. But to issue a warrant, that is not. There is no prerequisite in issuing the warrant. The only prerequisite is probable cause and that person has been charged in court.

DE JOYA v. JUDGE MARQUEZ (2006) There’s nothing really here that we can talk about with respect to the facts. The only reason why I asked you to read this case is to be able to see different kinds of jurisdiction. Please be able to distinguish between a “defendant” and the “accused”. The accused is in the criminal cases, defendant in civil cases. Now, sometimes, the SC will call the accused the “defendant” that is the prerogative of the SC, but you are not the SC. In addition, it may not be amiss to note that Chester de la Joya is not entitled to seek relief from this Court nor from the trial court as he continuously refuses to surrender and submit to the court’s jurisdiction.

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Jurisdiction over the plaintiff or petitioner  – this is acquired by the filing of the complaint, petition or initiatory pleading before the court by the plaintiff or petitioner.

b. Jurisdiction over the defendant or respondent – this is acquired by voluntary appearance or submission by the defendant or respondent to the court or by coercive process issued by the court to him, generally by the service of summons. c. Jurisdiction over the subject matter   – this is conferred by law and, unlike jurisdiction over the parties, cannot be conferred on the court by voluntary act of the parties. d. Jurisdiction over the issues of the case – this is determined and conferred by the pleadings filed in the case by the parties, or by their agreement in a pre-trial order or stipulation, or, at times by their implied consent as by the failure of a party to object to evidence on an issue not covered by the pleadings. e. Jurisdiction over the res (property or thing subject of the litigation) – this is acquired by the actual or constructive seizure by the court of the thing in question, thus placing it in custodia legis,  as in attachment or garnishment, or by provision of law which recognizes in the court the power to deal with property or subject matter within its territorial  jurisdiction, as in land registration proceedings or suits involving civil status or real property in the Philippines of a non-resident defendant.

3. JURISDICTION OVER THE SUBJECT MATTER  Jurisdiction over the Subject Matter This is the common jurisdiction in civil and criminal cases. It is determined by the allegations of the complaint or information in accordance with the law in force at the time of the commission of the crime. It is the law that confers jurisdiction over the subject matter. Rules of procedure yield to substantive law. Jurisdiction over the subject matter in a criminal case cannot be conferred upon the court by the accused, express waiver or otherwise, since such jurisdiction is conferred by the sovereign authority which organized the court and is given only by law in the manner and form prescribed by law.

Jurisdiction in Criminal Cases Determined by Penalty The court has or has no jurisdiction over a subject matter is determined by the penalty provided by the law for the offense. In criminal cases, when you talk about subject matter, look at the penalty of the crime involved. (E.g. rape with homicide – RP; malicious mischief – Am). In relation to jurisdiction over the subject matter is the  jurisdiction of the courts.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

3.A JURISDICTION OF COURTS

RTC is an appellate court of the MTC in cases on review.

3.A.1. JURISDICTION OF MTC AND RTC

1. MTC BP 129, Sec. 32, RA 7691 1. Violations of city or municipal ordinances committed within their respective territorial jurisdiction;

2. Offenses punishable with imprisonment of not exceeding 6 years irrespective of amount of imposable fine. 3. Offenses when the prescribed penalty is fine only and the

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imposable amount does not exceed P4,000 [SC 04-94]. a. If imprisonment with fine, penalty of imprisonment governs. Offenses involving damage to property through criminal negligence irrespective of amount of imposable fine. Reckless imprudence resulting to damage to a. property. Violations of BP 22. – all BP 22 cases are now under MTC starting RA 7691.

If you look at the flow of appeal, the court of original  jurisdiction is the MTC, the decisions of the MTC appealable to the RTC and to the CA to the SC.

RA 8249, Section 4 [Sandiganbayan Law] Where one or more accused are govt officials or employees: 1. They are classified below grade 27 at the time of commission of the offense. 2. They violate either RA 3019, RA 1379, or Chapter II, Section 2, Title VII, Book II of RPC. 3. They commit other offenses or felonies whether simple or complexed with other crimes in relation to their office. 4. The prescribed penalty for the offense is imprisonment of 6 years or less. MTC appeal to the RTC, from the RTC to the Sandiganbayan then to the SC because this is under RA 8249.

2. RTC BP 129, Sec. 20 1. All offenses where the prescribed penalty for the offense 2. 3.

imprisonment is exceeding 6 years, irrespective of amount of imposable; All offenses when the prescribed penalty is fine only and the imposable amount exceeds P4,000; All criminal cases not within the exclusive jurisdiction of any court, tribunal or body.

RA 8249, Section 4 [Sandiganbayan Law] Where one or more of the accused are govt officials of employees, and; 1. They are classified below grade 27 at the time of commission of the offense 2. They violate either RA 3019, RA 1379, or Chapter II, Section 2, Title VII, Book II of RPC. 3. They commit other offenses or felonies whether simple or complexed with other crimes in relation to their office, 4. The prescribed penalty for the offense is imprisonment exceeding 6 years.

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RTC IN SPECIAL JURISDICTION Family Courts, RA 8369, Section 5 Criminal cases where one or more of the accused is below 18 years of age but not less than 9 years of age, or where one or more of the victims is a minor at the time of the commission of the crime. Cases against minors cognizable under the Dangerous Drugs Act, RA 9165. Violations of RA 7610, as amended by RA 7658; and Cases of domestic violence (a) 1. Women – which are acts of gender based violence that results, in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion; and (b) 2. Children – which include in the commission of all forms of abuse, neglect. 

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Dangerous Drugs Court 

Violations under RA 9165 except minors

Special Commercial Court 1. Complaints for violations laws involving intellectual 2. 3.

property rights where the total damages claimed are less than two hundred thousand pesos Complaints for Infringement of Trademarks, Tradenames, Patents or Copy right Unfair Competition

Instances where the case will fall under the jurisdiction of RTC even if the penalty is 6 years or less; 1. 2. 3. 4.

Art. 360, RPC – Libel RA 8293 – Criminal cases involving IP under IPO shall be tried in the RTC. RA 9165 – any violation of the Dangerous Drugs Act BP 881 – Criminal cases arising from violations of the OEC shall fall under the jurisdiction of the RTC.

CASE DISCUSSIONS PALANA v. PEOPLE (2007) In this case the violation of BP 22 was penalized on 1991; but on 15 June 1994 – BP 129 came out that expanded the  jurisdiction of the MTC. BP 22 cases are now under the  jurisdiction of the MTC but when the complaint was now filed the jurisdiction now belong to RTC. To clarify, the determination of the jurisdiction of the court on a case on a subject matter is dependent on the penalty, which is also in keeping with the law in force  at the time of the institution of the action. Whether or not RTC had jurisdiction over Palana’s case. The RTC has jurisdiction at the time the information was filed in 1991. Thus, it adhered to the RTC.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Operative also in the case of Palana v. People is the doctrine of the Adherence of Jurisdiction   which means that once  jurisdiction attaches, it cannot be ousted by the happening of subsequent events although such character which should have prevented the jurisdiction from attaching in the first instance. So, because jurisdiction already attached to the RTC, the happening of a subsequent event like the enactment of R.A. 7691 - Expanding the jurisdiction of MTC over BP 22 cases, the RTC’s jurisdiction over such case cannot be taken away. In other words, if we have pending cases with RTC - BP 22 cases, then the RTC will have to continue despite the enactment of RA 7691 .

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PEOPLE v. BENIPAYO (2009) Libel – WON RTC has jurisdiction that the law is clear that in Article 360 that an action for libel is exclusively filed on RTC. By express provision of law, the jurisdiction over the subject matter is identified. 

PEOPLE v. JUDGE YADAO (2012) This case involves the alleged summary execution suspected members of the Kuratong Baleleng Gang, the OMB filed 11 counts of murder against Lacson, et al. During the proceedings, two of the parents of the victims presented birth certificate showing that two of the victims were minors. Prosecution argued that due to such – it must be reraffled to a family court.

PEOPLE v. CA (2008) In this case the violation of BP 22 was 1992 – unlawful possession of timber; RTC Surigao Branch 32 PC medium RA 7691 took effect on 1994 expanding MTC  jurisdiction, prior BP 129, the MTC could only try cases cases with only 4 years or months, now it is 6 years. The passage of RA 7691 did not relieve RTC  jurisdiction, a jurisdiction of a court to try a criminal action is to be determined by the law in force at the time of the institution of the case. Exception: Where statute expressly provides to be applied retroactively, those have not reached the trial stage.  

The denial of Judge Yadao of this motion to reraffled is correct because Section 5, RA 8369 which aims to protect children and their welfare can be relaxed when the purpose no longer applies. In this case, the minor victims are already dead. Thus, RTC of Quezon has jurisdiction over the case.

ASISTIO v. PEOPLE (2015)

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DAYAP v. SENDIONG (2009) An information was filed for Reckless Imprudence resulting to Homicide, Less Serious Physical. WON has jurisdiction; what court has jurisdiction over the case. It is the MTC since the crime charged was such, which the RPC imposes a penalty PC med – PC max which has (2y4m1d – 4y2m1d) took cognizance.

Section 46 of the Cooperative Code, RTC lacks jurisdiction for it only provided only a civil liability - punishment is not less than 6 months and to 1 year. OSG argues Sec 124(3) of RA 6938 – Section 47 is violated by P5,000 of not less than 5-10. Since law specifically provides  would be punishable 5y-10y it is the RTC that has jurisdiction. Jurisdiction of the subject matter conferred by law. This law also contains provisions on what court has  jurisdiction.  

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The fact that the crime when it was committed was under the  jurisdiction of the RTC does not matter.  It does not matter what  jurisdiction was at the time of the commission of the crime. What is important is the court that has jurisdiction at the time of the filing of the complaint.

GARCIA v. MIRO (2009) Yes. MTC – Article 365; Reckless Imprudence Resulting to Homicide is PC med-max. Just because the accused here is a judge, the crime that he allegedly had nothing to do with his office as a judge, an accident with a Land Cruiser collided with a motorcycle. It has absolutely nothing to do with the duty of the  judge. 

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The judge here accidentally hit somebody with his car and that person died, that is not automatic. Just because he is a judge it is not automatic that he is under the jurisdiction of the Sandiganbayan.

3.A.1. JURISDICTION OF SANDIGANBAYAN Sandiganbayan The jurisdiction of the Sandiganbayan is perhaps one of the most often amended provision from the 1973 Constitution to RA 8249 of 1997. Before RA 8249, jurisdiction of the Sandiganbayan was determined on the basis of the penalty imposable on the offense charged. Then, it was amended such that regardless of the penalty, so long as the offense charged was committed by a public officer, the Sandiganbayan was vested with jurisdiction. Under RA 8249, to determine whether the Sandiganbayan has  jurisdiction, lawyers must look into two two (2) criteria, namely: The nature of the offense and The salary grade of the public official.

Laws Relative to Sandiganbayan Jurisdiction It is important to note that there are important laws that determine the jurisdiction and how it affects cases because what matters was the law that governs at the time of the filing or institution of the criminal case. 1. PD 1606 effective December 10, 1978 2. RA 7975 effective May 16, 1995 3. RA 8249 effective February 23, 1997

The alleged offense was not committed in relation of his office. From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

 JURISDICTION OF THE SANDIGANBAYAN SANDIGANBAYAN RELATIVE TO PD 1606, RA 7975, RA 8246 and RA 10660 The following are the different laws that the covers the jurisdiction of the Sandiganbayan, note the differences in the following laws.

PRESIDENT DECREE NO. 1606

REPUBLIC ACT NO. 7975

REPUBLIC ACT NO. 8246

December 10, 1978

May 16, 1995

February 23, 1997

ON CASES AND OFFICERS COVERED BY THE SANDIGANBAYAN The Sandiganbayan shall have jurisdiction over: (a)

(b)

(c)

Violations of Republic Act No. 3019, as amended, otherwise, known as the Anti-Graft and Corrupt Practices Act, and Republic Act No. 1379; Crimes committed by public officers and employees including those employed in government-owned or controlled corporations, embraced in Title VII of the Revised Penal Code, whether simple or complexed with other crimes; and Other crimes or offenses committed by public officers or employees, including those employed in government-owned or controlled corporations, in relation to their office.

Sandiganbayan shall exercise original  jurisdiction in all cases invo lving:

Sandiganbayan shall exercise original  jurisdiction in all cases in volving:

A. Violations of Republic Act No. 3019, as

A. Violations of Republic Act No. 3019, as

amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in permanent, acting or interim capacity, at the time of the commission of the offense:

amended, otherwise known as the Anti-graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials

(1) Officials

of the executive branch occupying the positions of regional director and higher, otherwise classified as grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors,

(a) Provincial governors, vice-governors,

members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads;

members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads;

(b) City mayors, vice-mayors, members of

(b) City mayors, vice-mayors, members of

the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads;

the sangguniang panlungsod, city treasurers, assessors engineers and other city department heads;

(c) Officials of the diplomatic service

(c) Officials of the diplomatic service

occupying the position of consul and higher;

occupying the position of consul and higher;

(d) Philippine army and air force colonels,

(d) Philippine army and air force colonels,

naval captains, and all officers of higher rank;

naval captains, and all officers of higher rank;

(e) PNP chief superintendent and PNP

(e) Officers of the Philippine National

officers of higher rank;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;

Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

(2) Members of Congress and officials thereof

(2) Members of Congress and officials

classified as Grade "27" and up under the Compensation and Position Classification Act of 1989;

thereof classified as Grade'27'and up under the Compensation and Position Classification Act of 1989;

(3) Members

without of the

(3) Members of the judiciary without

(4) Chairmen and members of Constitutional

(4) Chairmen and members of Constitutional

Commissions, without prejudice to the provisions of the Constitution; and

Commissions, without prejudice to the provisions of the Constitution; and

(5) All other national and local officials

(5) All other national and local officials

classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989;

classified as Grade'27'and higher under the Compensation and Position Classification Act of 1989.

B. Other offenses or felonies committed by the

B. Other offenses or felonies whether simple or

public officials and employees mentioned in subsection (a) of this section in relation to their office.

complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office.

C. Civil and criminal cases filed pursuant to and

C. Civil and criminal cases filed pursuant to and

in connection with Executive Order Nos. 1, 2, 14 and 14-A.

in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

of the judiciary prejudice to the provisions Constitution;

prejudice to the provisions of the Constitution;

WHEN OTHER REGULAR COURTS SHALL HAVE EXCLUSIVE ORIGINAL JURISDICTION The jurisdiction herein conferred shall be original and exclusive if the offense charged is punishable by a penalty higher than prision correccional, or its equivalent, except as herein provided; in other offenses, it shall be concurrent with the regular courts.

In cases where none of the principal accused are occupying positions corresponding to salary grade "27" or higher, as prescribed in the said Republic Act No. 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court, as the case may be, pursuant to their respective  jurisdictions as provided in Batas Pambansa Pambansa Blg. 129.

RA 10660 Amendment: (Approved – April 16, 2015) Provided, That the Regional trial Court shall have exclusive original jurisdiction where the information: (a) Does not allege any damage to the government or any bribery; or (b) Alleges damage to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding One million pesos (P1,000,000.00). Subject to the rules promulgated by the Supreme Court, the cases falling under the  jurisdiction of the Regional Trial Court under this section shall be tried in a judicial region other than where the official holds office. In cases where none of the accused are occupying positions corresponding to salary grade ‘27’ or higher, as prescribed in the said Republic Act No. 6758, or military or PNP officers mentioned above, exclusive original  jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court and municipal circuit trial court ‘as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129, as amended.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

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APPELLATE JURISDICTION OF THE SANDIGANBAYAN The Sandiganbayan shall exercise exclusive The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from the final appellate jurisdiction over final judgments,  judgments, resolutions or orders of regular resolutions or orders or regional trial courts courts where all the accused are occupying whether in the exercise of their own original positions lower than salary grade "27", or not  jurisdiction or of their appellate j urisdiction as otherwise covered by the preceding herein provided. enumeration.

EXCLUSIVE ORIGINAL JURISDICTION OVER SPECIAL ACTIONS The Sandiganbayan shall have exclusive original The Sandiganbayan shall have exclusive original  jurisdiction over petitions for the issuance of  jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, the writs of mandamus, prohibition, certiorari, habeas corpus, injunction, and other ancillary habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate writs and processes in aid of its appellate  jurisdiction: Provided, That the jurisdiction over  jurisdiction and over petitions of similar nature, these petitions shall not be exclusive of the including quo warranto, arising or that may Supreme Court. arise in cases filed or which may be filed under Executive Order Nos. 1,2,14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court.

SANDIGANBAYAN VIS-À-VIS WITH COURT OF APPEALS The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the office of the Ombudsman, through its special prosecutor, shall represent the people of the Philippines except in cases filed pursuant to Executive Orders Nos. 1, 2, 14 and 14-A.

The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

JOINT TRIAL INVOLVING PRIVATE INDIVIDUALS In case private individuals are charged as coprincipals, accomplices or accessories with the public officers or employees including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees. Where an accused is tried for any of the above offenses and the evidence is insufficient to establish the offense charged, he may nevertheless be convicted and sentenced for the offense proved, included in that which is charged.

In case private individuals are charged as coprincipals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.

In case private individuals are charged as coprincipals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.

CIVIL ACTIONS JOINTLY DETERMINED IN SANDIGANBAYAN OR APPROPRIATE COURTS Any provision of law or the Rules o f Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability arising from the offense charged shall at all times be simultaneously instituted with, and jointly determined in the same proceeding by, the Sandiganbayan, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such action shall be recognized;

Any provision of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability arising from the offense charged shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized:

Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized:

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO Provided, however, that, in cases within the Provided, however, That where the civil action exclusive jurisdiction of the Sandiganbayan, had heretofore been filed separately but where the civil action had therefore been filed  judgment therein has not yet been rendered, separately with a regular court but judgment and the criminal case is hereafter filed with the therein has not yet been rendered and the Sandiganbayan or the appropriate court, said criminal case is hereafter filed with the civil action shall be transferred to the Sandiganbayan, said civil action shall be Sandiganbayan or the appropriate court as the transferred to the Sandiganbayan for case may be, for consolidation and joint consolidation and joint determination with the determination with the criminal action, criminal action, otherwise, the criminal action otherwise the separate civil action shall be may no longer be filed with the Sandiganbayan, deemed abandoned. its exclusive jurisdiction over the same notwithstanding, but may be filed and prosecuted only in the regular courts of competent jurisdiction; Provided, further, that, in cases within the concurrent jurisdiction of the Sandiganbayan and the regular courts, where either the criminal or civil action is first filed with the regular courts, the corresponding civil or criminal action, as the case may be, shall only be filed with the regular courts of competent  jurisdiction.

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Provided, however, That where the civil action had therefore been filed separately but  judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned.

Excepted from the foregoing provisions, during martial law, are criminal cases against officers and members of the armed forces in the active service.

TRANSFER OF CASES Section 8. Transfer of cases. As of the date of the effectivity of this decree, any case cognizable by the Sandiganbayan within its exclusive jurisdiction where none of the accused has been arraigned   shall be transferred to the Sandiganbayan.

Section 7.  Upon the effectivity of this Act, all criminal cases in which trial has not begun in begun in the Sandiganbayan shall be referred to the proper courts.

Section 7. Transitory Provision. - This Act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof

Concerning the Transfer of Cases | As decided in Binay v. Sandiganbayan (GR 120681, October 1, 1999) R.A. No. 7975, by virtue of Section 7, belongs to the exception rather than the rule. ( Doctrine of Adherence ). The provision is transitory in nature and expresses the legislature's intention to apply its provisions on jurisdiction to "criminal cases in which trial has not begun in the Sandiganbayan." To this extent, R.A. 7975 is retroactive. Such a transitory provision is not peculiar to R.A. No. 7975; similar provisions are found in other laws reallocating the  jurisdiction of the cou rts. 35 There is no reason why Section 7 of R.A. No. 7975 should be any different. The term "proper courts," as used in Section 7, means "courts of competent jurisdiction," and such jurisdiction is defined in Section 4 of P.D. No. 1606, as amended by R.A. No. 7975. The former should not be read in isolation but construed in conjunction with the latter. The term "proper courts" as used in Section 7, therefore, is not restricted to "regular courts," but includes as well the Sandiganbayan, a special court. If the intent of Congress were to refer all cases the trials of which have not begun to the regular courts, it should have employed the term "proper regular courts" or "regular courts" instead of "proper courts." Accordingly, the law in the third paragraph of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, uses the term "regular courts," not "proper courts": The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from the final judgments, resolutions or orders of regular courts where all the accused are occupying positions lower than salary grade "27," or not otherwise covered by the preceding enumeration. Construed thus, the effects of Section 7 may be summarized as follows: 1. If trial of cases before the Sandiganbayan has already begun as of the approval of R.A. No. 7975, R.A. No. 7975 does not apply. 2. If trial of cases before the Sandiganbayan has not begun as of the approval of R.A. No. 7975, then R.A. No. 7975 applies. a. If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, the Sandiganbayan has jurisdiction over a case before it, then the cases shall be referred to the Sandiganbayan. b. If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, the Sandiganbayan has no jurisdiction over a case before it, the case shall be referred to the regular courts. The latter provision more accurately expresses the legislature's intent and, in any event, should be applied in this case, R.A. No. 8249 having superseded R.A. No. 7975. In Panfilo M. Lacson vs. The Executive Secretary, et al., the Court explained the purpose of the foregoing provision. . . . it can be reasonably anticipated that an alteration of [the Sandiganbayan's] jurisdiction would necessarily affect pending cases, which is why it has to provide for a remedy in the form of a transitory provision. . . . . The transitory provision does not only cover cases which are in the Sandiganbayan but From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

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also in "any court." . . . . Moreover, those cases where trial had already begun are not affected by the transitory provision under Section 7 of the new law (RA 8249). The possible disruptive effect of the amendments to the Sandiganbayan's jurisdiction on pending cases was, therefore, not lost on the legislature. Congress has, furthermore, deemed the commencement of the trial as the crucial point in determining whether a court retains a case pending before it or lose the same on the ground of lack of jurisdiction per the provisions of R.A. No. 8249. The law obviously does not want to waste the time and effort already devoted to the presentation of evidence if trial had already begun. On the other hand, not much disruption would be caused if the amendment were made to apply to cases the trials of which have yet to start. The ramifications of Section 7 of R.A. No. 8249 may be stated as follows: 1. If trial of the cases pending before whatever court has already begun as of the approval of R.A. No. 8249, said law does not apply. 2. If trial of cases pending before whatever court has not begun as of the approval of R.A. No. 8249, then said law applies. a. If the Sandiganbayan has jurisdiction over a case pending before it, then it retains jurisdiction. b. If the Sandiganbayan has no jurisdiction over a case pending before it, the case shall be referred to the regular courts. c. If the Sandiganbayan has jurisdiction over a case pending before a regular court, the latter loses jurisdiction and the same shall be referred to the Sandiganbayan. d. If a regular court has jurisdiction over a case pending before it, then said court retains jurisdiction. Thus, under both R.A. Nos. 7975 and 8429, the Sandiganbayan retains jurisdiction over said cases.

CASE DISCUSSIONS PEOPLE v. MONTEJO (1960) In this case, Mayor Brown et al., equipped some policemen with high powered guns at a sub-police headquarters at Tipo-Tipo. This involved the torture of Awalin Tebag. The case was filed in the RTC of Zamboanga, Mayor Brown alleged that SB had jurisdiction over his case. Since Mayor Brown that SB has jurisdiction over his case that the offense committed related of his office. 

Yes, the crime committed is related to the office of Mayor Brown, if he committed it in the performance of his duty. Mayor established the sub-police HQ and the police followed the orders. Therefore, SB has the jurisdiction over the case. 

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CORPUZ v. TANODBAYAN (1987)

It is the COMELEC has exclusive jurisdiction over the case involving election offenses, as compared to the case of Benipayo but the law expressly provides. When this happens it is the COMELEC has the power to investigate this crimes. 

Other issue: So we have here, the prosecutor for this case is the COMELEC, once probable cause is found, where should the criminal complaint be found? The Sandiganbayan – one of the accused is a member of the COMELEC. 

Is the only one under the jurisdiction under the Sandiganbayan?  What about the private individuals? So if we have a government official, who falls under the jurisdiction of the SB and he commits a crime in connection with his office, in conspiracy with private individuals, they will also be under the SB. Private individuals are included as long as they are in conspiracy with the public official included in the case under the jurisdiction of the SB. 

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Corpus was a member of the group of a political group. The public officer here involved is the Mayor who won the elections. As one of the accused, there was a COMELEC Official, the kind of COMELEC Official. Focus on the COMELEC Official, they were charged for the offenses under the 1978 Election Code, election hearing and campaigning inside voting centers.

Antonio Sanchez charged was with rape with homicide before the RTC contending that he was a public official and he should be under the SB.

Why is the Tanodbayan (Ombudsman) insisting the authority to prosecute the case, and one of the accused is a public official. And so here we have the Tanodbayan, of the Special Investigator of the Ombudsman for they were under the jurisdiction of the SB. Public officer – COMELEC Official. The COMELEC Officer allowed registration of voters outside of the registration period and that he was a SG27 official.

The crime of rape with homicide is not a graft and corruption case and it is not an offense committed in relation of his office. There is no direct relation between the offense with charge and the office as a Mayor. The offense can stand independently of the office. Compared to the case of Montejo, where the Mayor committed murder in relation to his office, which he could have not done without it. It does not fall under the SB.

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SANCHEZ v. DEMETRIOU (1993)

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From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

BONDOC v. SANIGANBAYAN (1990)

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LACSON v. EXECUTIVE SECRETARY (1999)

Kiting operations, Valentino and Estacio were charged with estafa, Bondoc (private individuals) charging them as principal. Bondoc asserted that as private individual where he shall be charged as co-principal, he should be tried  jointly that the separate proceedings proceedings were invalid.

Lacson was filed on 2 November 1995, by virtue of amended information: RA 7975 – SB only “principal accused” The SB admitted the information transferring of RTC Quezon.

Yes. SB has jurisdiction over Bondoc as he is a co-accused of the crime based on nature (estafa) and penalty. The impossibility of a joint trial cannot and does not alter the essential nature of the crimes in question. The SB just like the CA has several divisions, there was a crime committed with conspiracy with public officials, definitely under PD 1606, Section 4(3): (a) In case private individuals are charged with public officers they should be tried jointly.

RA 7975 Significance in relation of PD 1606 Why was Lacson alleging under RA 7975, before RA 7975 there was no such thing as salary grade requirement. Under PD 1606 – there was no salary grade requirement and higher, it applied practically all officials, but from May 16, 1995 there was additional requirements. Lacson was charged as accessory.

Jointly tried: To avoid repeated and unnecessary presentation in different venues in the same facts. What happened was that they were charged separately. Bondoc wanted the cases to be joint but it was too late, for the other cases were almost finished. Can he be tried alone as private i ndividual in the SB? 

RA 8249 – Expanding the jurisdiction of the Sandiganbayan, it deleted the word principal from principal accused, the degree

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(a) Adherence to jurisdiction: it has already

of participation of the public officer is immaterial now. The information was filed  on 2 November 1995, Lacson was Police Superintendent under the present rule RA 7975. RA 8249 was applicable, it was given a retroactive effect, ex post facto laws do not cover remedial laws. RA 8249 deleted word “principal” accused.

attached to SB, this is a rare occasion where he was tried before the SB.

Argument: The crime was murder, it was not present in Section

If a crime is committed by a private individual and a public individual in conspiracy while conspiring each other under RA 3019. Will the proceeding be filed differently? – No.

4(a), but under Section 4(b) the crime must have been committed in relation to his office. Intimately connected with his office. It has to be clearly stated in the information how

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the crime of murder was related to his office as Supt. Of the PNP  if it was not clearly stated, it

AZARCON v. SANDIGANBAYAN (1997) In this case, Azarcon was designated by BIR as custodian of the property of Jaime Alcala (seized for back wages). The property was taken out by Alcala. Charged by BIR for malversation for having failed to keep and preserve the subject property. SB acquire jurisdiction over rime committed solely by private individuals? 

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No. The SB does not acquire jurisdiction over crimes committed by private person, under Section 4 of PD 1606 only when they are co-principal, accomplice or accessory of a public officer or employee. Has no jurisdiction over him.

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removes him from the jurisdiction of the SB. We have to look at it step by step.

NOTE: While the information state that the above named accused committed the crime of murder in related to their public office there is no specific allegation  of the fact that the shooting of the victim by the principal accused is intimately related with the discharge of his office of their official duties as police officers. Thus, if the crime involves those which are felonies or offenses not enumerated it has to be in direct or intimate relation to their duties or office.

BINAY v. SANDIGANBAYAN (1999) Here we have a private individual, who allegedly was signed to some government work by the BIR. Why are you invoking PD 1606 – what date was the action filed? 

The law in force at the time of the filing of the action , what is important during the commission of the crime is the position of the public officer like salary, grade. Date of the filing action: 01-12-1990 SB PD 1606 (as amended) RA 7975 – May 16, 1995, so all cases filed before this date will apply PD 1606.   

On September 1994, Binay was charged of RA 3019 before the SB as a Municipal Mayor under PD 1606 He was under SB then without grade required. RA 7975 came into effect, alleging that SB lost  jurisdiction. Alleging that Section 4(a)(1). Municipal mayors were not included and not classified as Grade 27. Still under SB jurisdiction, even if the Municipal Mayor was not enumerated, the law is not exclusive. Section 444 of the LGC – The municipal mayor shall receive a minimum monthly compensation corresponding to Salary Grade 27. Therefore, he is under the jurisdiction the jurisdiction of the SB.  

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From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

The case filed: September 7, 1994 in SB The law took effect: May 16, 1995 Cases were filed by the Ombudsman in the SB against Mayor Binay of Makati for Illegal Use of P ublic Funds (RPC, A220) and Violation of Anti-Graft and Corrupt Practices Act (RA 3019) on September 1994. The informations filed constituted crimes which were committed by the petition in his incumbency in the year 1987.

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MAGSAYSAY v. SANDIGANBAYAN (1999) Magsaysay contends that the SB has no jurisdiction over him: 1. He has a salary grade of 27 2. Municipal Mayors are not under the enumeration At the time of filing RA 7975 applies, it does not cover him. But RA 8249 became effective there was a salary grade. Aside of LGC, there is an Index of Occupational Services of a Municipal Mayor is Grade 27. Therefore under 7975 he is under the SB. 

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Meanwhile RA 7975 redefining the jurisdiction of the SB took effect of May 16, 1995 so much that the petitioner filed before the SB a motion to refer his cases to the RTC Makati alleging that the SB has no jurisdiction over said cases.

Issue: Whether or not the Sandiganbayan has jurisdiction. YES. The informations against Binay were filed in SB on 7-7-1994 pursuant to PD 1606. On 05-16-1995, RA 7975 took. At this time Binay had not yet been arraigned by the SB.

RTC – no jurisdiction RA 7975 already was in effect; it did not have jurisdiction. Unlike in Binay (1994) this was filed in Sept. 1995, since his grade 27, the RTC definitely had no jurisdiction.

LLORENTE v. SANDIGANBAYAN (2000) Llorente was elected as municipal mayor August 3, 1993 – RA 3019; 1995 The trial has not begun in both cases when in May 16, 1995 RA 7975 was enacted amending P D 1606.  

While the cases were pending before the SC, the Congress had enacted RA 8249 against redefining jurisdiction. The law took effect on 02-23-97. It should not be referred – the doctrine of adherence of  jurisdiction because the action action was already filed before the SB. The SC said the exception to the rule where the statute expressly provides. RA 7975 belongs to the exception, the provision is transitory in nature, this is now applicable. But, the SC went on, proper court it is still the SB that is still the proper court for Binay was a G27 employee. 

Llorente argued that it divested Sandiganbayan for those municipal mayors who allegedly receives less than Salary G27. Yes. It has been ruled that SB still has jurisdiction, that RA 7975 did not deprive jurisdiction over violations against municipal mayors. It is the official’s grade that determine his or her salary according RA 6758 and Index of Occupation Services and Section 444(d) of the LGC In this case, municipal mayor is clearly covered. 

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What are the effects of Section 7?  Moving the case to the proper court. 1. If trial case before the SB has already begun as of approval of RA 7975 – it does not apply. 2. If trial of cases before the SB has not begun as of the approval of RA 7975 then it applies: a. If by virtue of Section 4 of PD 1606, as amended by Section 2 of Ra 7975m the SB has jurisdiction then it should be referred. b. If SB has no jurisdiction over a case be referred to regular courts. Transitory- this Act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof.

INDING v. SANDIGANBAYAN (2004) Inding is a SP charged with violation of RA 3019, filed on 27 January 1999 – applicable law was RA 8249 (02-11-1997). Inding contended here that the Sandiganbayan has no  jurisdiction because of the following contentions contentions that he is not at least SG27 for he falls under SG25. SB: RA 7975 is applicable for violation of RA 3019 without qualification and regardless of salary. Which law is applicable?  RA 7975 – May 16, 1995, original jurisdiction of the SB RA 8249 – Feb. 24, 1997, enumerates

But both laws, the reckoning period of the position is the time of the commission of the offense. Committed on 01-3-1997, thus RA 7975 applies. Under RA 7975 included members of SP falls under the jurisdiction of the SB. The court ruled here that violation of RA 3019 by officials in the executive Salary Grade 27. 

Retroactive 8249: 1. If it begun do not apply 8249; 2. If not begun a. Retain b. No – referred to regular court c. If pending but has jurisdiction – retain. They apply retroactively and work as an exception from the Doctrine of Adherence of Jurisdiction  provided that the trial for the case has not begun.

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This case is an En Banc penned by Justice Callejo, it was truly mentioned here: For purposes for determining which of the two laws. The period is the time of the commission of the offense.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO 

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This stands as an exception thereto the general rule, for it expressly states the reckoning period is the time of the commission of the offense. Offense was 01-03-1997, the applicable law is RA 7975, even if RA 8249 is applicable law (at the time of institution) SB still has jurisdiction, because the position Sangguniang Panglungsod is still included.

Another thing to look out for, RA 7975, Section (4) RA 7975 – original jurisdiction RA 8249 – exclusive jurisdiction PD 1606 says exclusive original jurisdiction   

MARILYN GEDUSPAN (2005) Geduspan for Section 3(e) for violation of RA 3019 – 07-11-02 RA 8492 was applicable. Geduspan was the Regional Direction of Philhealth Region VI, appointment papers and salary adjustment was Dept Manager and Salary Grade of 26. Yes. Sandiganbayan still have jurisdiction over the case. In violations of RA 3019; Presidents, directors or trustees, mangers of GOCCs is within the jurisdiction of the Sandiganbayan. That it is her position not her salary grade determines. Director-Manager of a GOCC (PhilHealth). 

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PEOPLE v. SANDIGANBAYAN (2005) Alas was charged for RA 3019 Chief Operating Officer – PPSB GOCC created by a special law. PPSB as a private corporation, and Alas as private individual, GOCCs created by the Corporation Code. Yes, SB has jurisdiction. Section 2 of EO 292 whether governmental or proprietary in nature. PPSB fits description, 99% is owned by the government. 

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Petitioner Dinah Barriga seeks to nullify the Resolution of the SB in denying her motion to quash the information and motion for reconsideration thereof. Barriga and Mayor Villamor of Carmen, Cebu were charged with malversation of funds wherein they allegedly connived and collaborated in using the said public fund to a public purpose different from which it was intended or appropriated. Such criminal case was filed with the Sandiganbayan. Barriga assail the jurisdiction of Sandiganbayan over the case filed against her considering that position only holds a SG24 and she is not an accountable officer to be charged with such.

Issue: Whether SB has jurisdiction – Yes. Rep. Act No. 8249, which amended Section 4 of Presidential Decree No. 1606, provides , inter alia, that the Sandiganbayan has original jurisdiction over crimes and felonies committed by public officers and employees, at least one of whom belongs to any of the five categories thereunder enumerated at the time of the commission of such crimes.

Two Classes of Public Office Related Crimes There are two classes of public office-related crimes under subparagraph (b) of Section 4 of Rep. Act No. 8249: 1. Those crimes or felonies in which the public office is a constituent element as defined by statute and the relation between the crime and the offense is such that, in a legal sense, the offense committed cannot exist without the office; (a) Sandiganbayan has original jurisdiction (b) Prosecutor need not state in the Information specific factual allegations of the intimacy between the office and the crime charged, or that the accused committed the crime in the performance of his duties.

2. Such offenses or felonies which are intimately connected with the public office and are perpetrated by the public officer or employee while in the performance of his official functions, through improper or irregular conduct. (c) SB shall likewise have original jurisdiction (d) If the Information contains specific factual allegations showing the intimate connection between the offense charged and the public office of accused, and the discharge of his official duties or functions – whether improper or irregular.

RA 8249 provides that: SB shall have exclusive original jurisdiction. They still are covered, when the law does not distinguish, we shall not distinguish. It does not matter if under SEC or Corporation Code, any of these officers, when they commit the crime, or those in relation to their office they are under SB.  

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JUDGE ESTEBAN v. PEOPLE (2005) 1998 – Sexual Harassment (RA 7877) against Judge Esteban. The acts committed in relation to his office due to the approval, the allegations in the information shows connection. 

Yes. Section 4(b), RA 8249: other offenses or felonies by those enumerated in relation to their office. SC Circular No. 7 – 04-27-87. Judge Esteban used his position in committing the acts complained of. 

BARRIGA v. SANDIGANBAYAN

The requirement is not complied with if the Information merely alleges that the accused committed the crime charged in relation to his office because such allegation is merely a conclusion of law. If such happens, then the jurisdiction shall not fall under the Sandiganbayan and fall to the proper courts or jurisdiction. Two of the felonies that belong to the first classification are malversation defined and penalized by Article 217 of the 

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Revised Penal Code, and the illegal use of public funds or property defined and penalized by Article 220 of the same Code. The public office of the accused is a constituent element in both felonies. Thus, there is no more need to allege the factual situation in order to justify that the crime was committed in relation with official functions. 

The Court has also ruled that one who conspires with the provincial treasurer in committing six counts of malversation is also a co-principal in committing those offenses, and that a private person conspiring with an accountable public officer in committing malversation is also guilty of malversation. We reiterate that the classification of the petitioner’s position as SG 24 is of no moment.

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AMBIL v. SANDIGANBAYAN (2011) Governor of Eastern Samar who was the provincial warden, they were both charged with RA 3019. Apelado who was a provincial warden (SG 22), if a person acts in conspiracy – he can also be tried by the Sandiganbayan.

BILLEDO v. JUDGE WAGAN (2011) Criminal cases were filed for investigation OMB but no probable cause was dismissed. Civil case in the RTC. WON the jurisdiction belongs to the Sandiganbayan – No. The RTC has jurisdiction, it does not fall within the purview of this subject civil case. No criminal action was filed, there was no appropriate court to which the civil case should be consolidate. It is illogical to say that the civil case was abandoned, it does not mean the criminal action was dismissed. 

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The determinative fact is that the position of her co-accused, the municipal mayor, is classified as SG 27, and under the last paragraph of Section 2 of Rep. Act No. 7975, if the position of one of the principal accused is classified as SG 27, the Sandiganbayan has original and exclusive jurisdiction over the offense.

Under Article 100 of the RPC, any person criminally liable is also civilly liable. This applies when there is a victim or the offended party. In RA 9165 there are times when there are no offended party. If there is a victim (like in this case, an Unlawful Arrest), the victim filed a criminal case against Cruz before the OMB to investigate but because of Article 100, Mina also filed for damages with the RTC. So we have a civil case in the RTC, and criminal cases were investigated but dismissed. 

ALZAGA v. SANDIGANBAYAN (2006) AFR-RSBS, and the public officials were the VP and AVP. They are under the jurisdiction of the SB for AFP-RSBS of the GOCC, they are definitely higher than director.

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LAZARTE v. SANDIGANBAYAN (2009) Petitioner was the chairman of the NHA which is a GOCC even though he does not receive SG27 he is the chairman or a department manager, therefore they are under the jurisdiction of the Sandiganbayan.

BALABA v. PEOPLE (2009) Crime is committed in 1993 (under RA 7975) was the Municipal Treasures, information was filed for Malversation of Public Funds. WON CA Erred in Dismissing Balaba’s Appeal. Section 4(c)(3) – SB the exclusive appellate jurisdiction over final judgment, resolutions of the RTC.  

When he committed the crime he was a Municipal Treasurer at the time 1993 (PD 1606) which did not specify the position, it was filed at the RTC, because the trial has not yet begun, the effect of RA 7975 which transfer cases to proper court. Since RA 7975 does not enumerate the Municipal it was filed at the RTC. From the RTC it should be filed to the Sandiganbayan. It cannot be transferred from the CA due to Section 2.2 of Rule 50, an appeal erroneous but its shall not be transferred but shall be dismissed outright. 

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Under the original jurisdiction of the RTC over the accused, being an assistant municipal treasurer, he is not under the  jurisdiction of RTC. The error us that the appeal appeal should be made to the Sandiganbayan and not to the Court of Appeals.

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According to Cruz, the civil case should have been to the Sandiganbayan according to Section 4 of RA 8249.

TORRES v. PEOPLE (2011) The appeal was made to the CA instead to the SB, it was filed to the RTC (principal of rural high school – malversation); appeal should have been made to the SB.

DISINI v. SANDIGANBAYAN (2013) Civil case was filed by PCGG against Disini in SB in ill-gotten wealth and embezzlement, criminal case. 30 June 2004 Disini. Questioning the SB jurisdiction not charged for he was private individual. SB has jurisdiction. Civil and criminal cases filed pursuant to and in connected. EO 1, Section 2 did not distinguish whether private or public status. While Section 4(c) did not mention salary grade or position. When it comes to the cases filed by PCGG it doesn’t matter if case is civil or criminal, you do not have to be SG27 or to be conspiracy. Section 4(c) is independent. Unquestionably, public officials occupying positions classified as Grade 27 or higher are mentioned only in Subsection 4a and Subsection 4b, signifying the plain legislative intent of limiting the qualifying clause to such public officials.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

To include within the ambit of the qualifying clause the persons covered by Subsection 4c would contravene the exclusive mandate of the PCGG to bring the civil and criminal cases pursuant to and in connection with E.O. Nos. 1, 2, 14 and 14-A. In view of this, the Sandiganbayan properly took cognizance of cases despite Disini’s being a private individual, and despite the lack of any allegation of his being the co-principal, accomplice or accessory of a public official in the commission of the offenses charged.

PEOPLE v. HENRY GO (2014) A private person and involved public officer is not an accused. Go’s act of posting bail and filing Motion for Consolidation vests the SB with jurisdiction over his position. Principle of adherence of jurisdiction He submitted himself to the jurisdiction of the SB he asked for affirmative relief Motion for consolidation of cases – tantamount to submit oneself to the jurisdiction of the court. He was a co-principal.  

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 JURISDICTION OF FAMILY COURTS The Court is not impervious to the provisions of Section 5 of R.A. 8369, that vests in family court’s jurisdiction over violations of R.A. 7610, which in turn covers murder cases where the victim is a minor. Thus: Courts. – The Family Courts shall Sec. 5. Jurisdiction of Family Courts

have exclusive original jurisdiction to hear and decide the following cases: Criminal cases where: one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age, or where one or more of the victims is a minor at the time of the commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the respondent may have incurred. (See People v. Judge Yadao) 

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INOCENTES v. PEOPLE (2016) On the issue on jurisdiction, it is of no moment that Inocentes does not occupy a position with a salary grade of 27 since he was the branch manager of the GSIS’ field office in Tarlac City, a government-owned or –controlled corporation, at the time of the commission of the offense, which position falls within the coverage of the Sandiganbayan’s jurisdiction.

WHEN IS AN OFFENSE CONSIDERED COMMITTED IN RELATION TO ONE’S OFFICE? 1. It cannot exist without office; 2. The office is constituent element of the crime as defined in the statute;

3. The offense is intimately connected with the office of 4.

the offender, and The fact that the offense was committed in relation to the office must be alleged in the information. (People v. Magallanes, October 11, 1995)

3.A.1. APPELLATE JURISDICITON OF COURTS 1. COURT OF APPEALS 1. 2.

Cases decided by the RTC in the exercise of its original or appellate jurisdiction Quasi-judicial

2. SANDIGANBAYAN 1.

Cases decided by the RTC in the exercise of its original or appellate jurisdiction

3. SUPREME COURT 1. 2. 3.

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Cases decided by the CA and CTA Cases decided by the RTC involving pure questions of law Cases decided by the Sandiganbayan in the exercise of its original or appellate jurisdiction. From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

RULE 110 PROSECUTION OF OFFENSES Criminal actions shall be instituted as follows: For offenses where a preliminary investigation is required pursuant to Section 1 of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation; For all other offenses, by filing the complaint or information, directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters. The institution of the criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws.

How Criminal Cases are Instituted 1. For offenses where preliminary investigation is required (a) By filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. (b) NOTE: If the accused is a public officer, then file to the ombudsman.

2. For all other offenses (c) In Manila and other Chartered Cities  

GR: With the office of prosecutor XPN: When charter states otherwise

(d) In all other places By filing complaint or information directly with the MTC, or By filing the complaint with the office of the prosecutor. 

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Section 1(b) – So if the criminal case does not require PI where should the complainant go – it depends where I am. If I am in Davao City (chartered cities) by filing the complaint with the Office of the Prosecutor (fiscal). One should go straight to the prosecutor’s office. Unless the charter provides otherwise, a charter provides a law for a city. What if we are not in a chartered city? If there is a prosecutor’s office, if there is none, file directly with the MTC. These are normally municipalities without prosecutors. Now, if we talk about cases under jurisdiction of the SB, if you want to file a criminal office (SG27 and under SB), you have to go the Ombudsman. Or if there is no ombudsman, but there are public officers, then go to the office of the prosecution. Under Rule 112, Penalty from crime is more than 4 years and 2 months, if below, then no need for preliminary investigation is required.

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Q. Is there a difference between commence and institution? The former the case is already in court. When you commence a case in court, but institution is earlier is the filing of the case, even before filing in court. When you want to file a criminal case against the accused you do not have go straight to the court, there is still a body for a preliminary investigation.

Inquisitorial System and the Accusatorial System The inquisitorial system holds the view that a criminal case is more of a concern of the state while the accusatorial holds the view that a criminal case is more concerned of the accused. In inquisitorial,  the participation of the state is given more prominence than the role of the offended party, which is the opposite in the accusatorial system. In the former, the state has the stake in the sense that it determines whether or not the accused will be prosecuted. In accusatorial, the role of the state is secondary. In the Philippines, we apply both in combination. Because we see later the prosecution of criminal offense is under the control and supervision of the public prosecutor under Section 5. But, the accusatorial system comes into play because the accused is given the right to a public trial. So the focus is on him. It is inquisitorial because of preliminary investigation; there is the prosecution who’s given the right to determine whether or not there is probable cause for trial. The accusatorial system, the accused has the right to present in any stage of the proceeding but if he doesn’t want to attend he can also be absent. But there are times that his presence will be required in arraignment or promulgation. Thus, the role of the prosecutor is very important in criminal prosecution.

SECTION 1(2): INTERRUPTION OF PRESCRIPTIVE PERIOD General rule: The filing of the complaint or information shall interrupt the running of the period of prescription of offense. Exception: Unless otherwise provided in special laws. Under your criminal law there are prescriptive period for crimes depending on the penalty. Like arresto mayor, you only have 30 days. You have to file your action, where do you go? You have to go the prosecutor’s office, if none, to the MTC. The prescriptive period will be interrupted upon the filing of the complaint. If there is no prosecutor, to the MTC. What if you file to the prosecutor’s office? Is the period interrupted, according to jurisprudence, if the crime is a felony under the RPC then yes. What if it is a crime under a special law? No. But note that this is an old rule.  

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From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

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Prescription and Institution of Criminal Actions

No. It is a well-settled rule that the filing of the complaint with

The institution of the criminal action interrupts the running of the period of the prescription of an offense unless otherwise provided in special law. It is elementary in Criminal Law that when a case is not filed right away upon the commission or discovery of the crime, the offense has prescribed – barred by prescription.

the fiscals office suspends the running of the prescriptive period. Proceedings against respondent was not terminated upon the time the complaint was filed with the Office of the Prosecutor until such time respondent is either convicted or acquitted by the proper court.

BRILLANTE v. COURT OF APPEALS (2004) Interruption of Prescription of Crimes Felonies And Special Laws – Act No. 3326 In your book, there this case, Zaldivia v. Reyes, a crime punishable by arresto menor , it was filed to the prosecutor’s office – it interrupted? To the SC – no,  it is the filing of the complaint before the court, however in Riodica v. CA, the case of Zaldivia was not followed now it ruled that it did interrupt because the complaint here is a felony  which slight physical injuries, under Zaldivia, violation was a municipal ordinance. If special law, the filing to pro secution’s office, there is no interruption – only when the case is filed in court. (Act No. 3326).

There was a libel case filed against Brillante by publishing open letter alleging that Binay and Rodente involved in a plot of an assassination for a mayoralty candidate. 10-12 January 1988 was the publication. 15 January 1988 was the filing to the fiscals office. 16 January 1989 the case was filed with RTC Makati,   

Issue: Whether or not the filing with the fiscal’s office of the case interrupted the running of the prescription. – YES.

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This is an instance wherein the law itself provides  for the interruption of the period when the case is filed to the fiscal. Under the provisions under RPC, Article 91 provides that:

Q. What do you by filing as to interrupt the running of period? Well it is not stated in the provision, but jurisprudence reveals that previous rule was that if the crime was a felony, mere filing with the prosecutor is enough and the special law offense must be with the court (People v. Clemente Bautista, 2007). But in the more recent ruling in Sanrio v. Edgar Lim  (2008), it does not matter anymore if the offense committed was punishable by either the RPC, special law or even if the ordinance. It now interrupts the running of prescriptive period.

CASE DISCUSSIONS PEOPLE v. CLEMENTE BAUTISTA (2007) Clemente Bautista and Leonida Bautista had a row against a Felipe Goyena that let to the latter’s slight physical injuries complaint against the former. The complaint was filed by Goyena at the barangay office in Malate, Malina but no settlement was attained. The recourse of Goyena was at the Office of the City Prosecutor.

Computation of prescription of offenses. The offenses. The period of prescription shall commence to run from the day o n which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or i nformation, and shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him.

The aforequoted provision expressly states that prescriptive period shall be interrupted by the filing of the complaint or information. The meaning of the phrase shall be interrupted by the filing of the complaint or information in Article 91 has been settled in the landmark case of People v. Olarte, where the Court settled divergent views as to the effect of filing a complaint with the Municipal Trial Court for purposes of preliminary investigation on the prescriptive period of the offense. The Court therein held that the filing of the complaint for purposes of preliminary investigation interrupts the period of prescription of criminal responsibility .

SANRIO v. EDGAR LIM (2008) Upon the recommendation of the prosecutor, a Joint Resolution dated 8 November 1999 was filed against the respondents and was approved by City Prosecutor. The case was filed to the MTC on 20 June 2000. The respondents implored that their case be dismissed on the premise that the time the case was filed the prescription period of 60 days had elapsed from the time crime was committing to the filing.

Issue: Whether or not the crime has prescribed? Held: It is not disputed that the filing of the Complaint with the OCP effectively interrupted the 60 day prescriptive period for instituting the criminal action for slight physical injuries. However, issue for resolution for this case is whether prescriptive period run anew after investigating prosecutor’s recommendation to file the proper criminal information against respondent was approved by the City Prosecutor.

Petitioner Sanrio filed complaint for copyright infringement with the Task Force on Anti-Intellectual Property Piracy (TAPP) of the DOJ. Respondent asserted he obtained his merchandise from authorized manufacturers. The complaint was dismissed. The CA affirmed such and held that the offense has prescribed.

Issue: Whether or not the action has prescribed. – No. Section 2 of Act 3326 provides that the prescriptive period for violation of special laws starts on the day such offense was committed and interrupted by institution of proceedings against respondent. Although no information filed immediately before the court, violation still has not yet prescribed. As ruled in Brillantes v. CA, we affirmed that the filing of the complaint for purpose of PI interrupts the period of prescription of criminal responsibility by filing before TAPP.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

The complaint or information shall be in writing, in the name of the People of the Philippines and against all persons  who appear to be responsible responsible for the offense involved. involved.

General Requirements for Complaint or Information 1. In Writing; 2. In the name of the People of the Philippines; and 3. Against all persons who appear to be responsible for the offense involved. [WPA] Authority to Determine Who to Charge 1. Discretion of the Prosecutor  The law makes it a legal duty for prosecuting officer to file the charges against whomsoever the evidence may show to be responsible for the offense. Their discretion lies in determining whether the evidence submitted justify probable cause. What the rule demands is that all persons who appear responsible shall be charged in the information, which implies those whom no sufficient evidence of guilt exists are not required to be included in such (Socrates v. Sandiganbayan, 253 SCRA 773).

2. Court Order to Include Others – Unconstitutional Such order does violence to the principle of separation of powers enshrined in the Constitution. In a clash of views between the judge who did not investigate and the prosecutor who did, that of the prosecutor should prevail. If this were allowed it would a tantamount to substituting the discretion of the judge as that of the prosecutor. The question of instituting a criminal charge is one addressed to the sound discretion of the investigating fiscal (Alonzo v. Concepcion , 448 SCRA 329).  A complaint is a sworn  written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated.

Elements of a Complaint 1. It is a Sworn written statement; 2. It must Charge a person with an offense; 3. It must be Subscribed by: a. The Offended party (heirs if victim died); b. Any Peace officer; c. Public officer charged with enforcement of the law violated. [SCS-OPP]

Complaint Must be Subscribed What do you mean by subscribed?  It  It means that it was signed, now it must be signed by the offended party or peace officer or public officer charged with the enforcement of the law violated.

Complaint Must be Sworn Who authorized for oath for criminal cases, and when they talk about sworn, it is before the public prosecutor, not the notary public. In usual affidavit-complaints, in the final paragraphs there is a part wherein the offended party signs the complaint in oath of an authorized officer.

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What if it is not sworn or signed?  It is only a formal defect,  it can be cured by person by person who signed. 

Who can sign the complaint? For RA 9165 – PDEA Tariff and Customs Code – Customs Official For NIRC – Tax Code Environmental Law – PD 705; the DENR Officials or the persons authorized by law. SSS Criminal Offenses – employer does not remit the employee’s payment and pockets the money; the one will sign are the SSS Officials.    

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Two Kinds of Complaint 1. Complaint filed in Court – is what you file in the MTC if there is no prosecutor and PI is not required signed by the offended party only.

2. Complaint filed for Preliminary Investigation before the Prosecutor   – it be filed and signed by anyone under those Section 3. The complaint filed herein is Denuncia. One must swear before the public prosecutor in this instance.

CASE DISCUSSIONS EBARLE v. SUCALDITO (1987) May the Anti-Graft Philippine League of the Philippines fil a Complaint  against   against a public official before a public prosecutor for violation of RA 3019? – Yes. A complaint for purpose of preliminary investigation by the fiscal need not be filed by the ‘offended party.’ The complaint referred to in Rule 110, Section 3 refers to a complaint filed in court and not in the fiscal. Because when the Complaint is filed with the court, then it must be commenced by the aggrieved party himself. In case of a complaint, it must be filed by the offended party; with respect to the info, it is the fiscal who files it. But a “complaint” filed with the fiscal prior to a judicial action maybe filed by any person.

SALES v. ADAPON (2016) The sole issue is whether or not the Court of Appeals erred in ordering the dismissal of the complaint because of the failure of the petitioner to appear at the clarificatory hearing set by the investigating prosecutor. – Yes. The investigating prosecutor gravely erred in dis missing of the complaint simply because of non-appearance at clarificatory hearing. To start with, her personal presence was excusable because of her advanced age and the distance of her place of residence at the time (she was in New York) from Batangas. Jerico Sales, her son-in-law was an authorized agent to handle her complaint and in addition, the documents submitted by both parties in the proceedings were sufficient for the determination of whether or not the probable cause existed.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

 An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court.

Elements of an Information 1. It is an Accusation in writing; 2. It must Charge a person with an offense; 3. It must be Subscribed by the Prosecutor; and 4. It must be Filed with the Court. [ACS(P)F] Information, Concept The prosecution will file in court. It is an accusation in writing. The prosecutor is already accusing, when information is filed it is called an accused. Before the filing of the information, they are called respondent. It is an accusation in writing, so there are no oral informations, it must charge a person with an offense. Only a person can be criminally charge. Criminal offense can only be committed by natural persons. The offense must be under a criminal. It must

be the prosecutor who shall sign and filed with the court. That is an information as defined.

Q. Should an information be under oath?  No. Unlike in a complaint, an information need not be sworn to. Information need not be under oath, the reason therefore being principally that the prosecutor filing it is charged with the special duty in regard thereto and is acting under the special responsibility of his oath of office (Estudillo v. Baloma,   426 SCRA 83, 23 March 2004).

Difference between Complaint and Information Complaint (Sec. 3) Information (Sec. 4) It can be signed by: Offended party; Peace officer; Public officer charged with the enforcement of the law violated. It must be filed with the prosecutor if preliminary investigation is required or the MTC if not required and there is no prosecutor. It must be sworn. 

It must be signed by the prosecutor himself.

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It must now be filed to the court.

There is no such requirement.

MIAQUE v. JUDGE PATAG (2009) The crime here was libel and it was committed in Iloilo City, the information was signed by the Provincial Prosecutor, is the information valid? No. Refer back to the territorial jurisdiction, the court must be in the particular city and for the area. Here, city, the jurisdiction of the prosecution follows the jurisdiction of the court. If the  jurisdiction belongs to the City then the City Prosecutor who must sign, in this case, it was the Provincial Prosecutor.

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It must be signed by the proper officer. The Provincial prosecutor has no jurisdiction, he only has jurisdiction over such cases falling under his territorial jurisdiction.

 All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. (As amended by AM 02-2-07-SC). However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged  with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court. (OCA Circular No. 392002, August 21, 2002). The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders. The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted upon a complaint filed by the offended party of her parents, grandparents or guardian, nor, in any case, if the offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf. The offended party, even if a minor, has the right to initiate the prosecution of the offenses of seduction, abduction and acts of lasciviousness independently of her parents, grandparents, or guardian, unless she is incompetent or incapable of doing so. Where the offended party, who is a minor, fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to parents, grandparents, or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the preceding paragraph. No criminal action for defamation which consists in the imputation of any of the offenses mentioned above shall be brought except at the instance of and upon complaint filed by the offended party. The prosecution for violation of special laws shall be governed by the provision thereof. The prosecution for violation of special laws shall be governed by the provisions thereof.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

SECTION 5(1)  Who Must Prosecute Criminal Actions

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SECTION 5(2)(3) and (4) Crimes that Cannot be Prosecuted De Oficio

What do you mean by prosecute?

Crimes the Cannot be Prosecuted De Oficio

All criminal actions shall be prosecuted under the direction and control of the prosecutor. So we have to distinguish between public prosecutor who is a government employee under the DOJ and a part Office of the Prosecution, a private prosecutor is a private lawyer hired by the private offended party, the one who will make sure the payment of damages. The concern of the offended party is how much will he get as reparation or damages of the crime, It does not say here that the criminal action shall be prosecuted by the prosecutor – no need for him to do all, only he just be there. The case cannot operate without the public prosecutor.

The crime can only be filed by the offended party (adultery and concubinage); these are instances the victims would rather not. If it is not the offended spouse in the case of Pilapil v. IbaySomera, it shall be dismissed.

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A. General Rule All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor (this usually means the public prosecutor, but in certain instances, the private prosecutor). Q. Why placed under direction and control of public prosecutor?  It is to prevent malicious or unfounded prosecutions by the private persons. Public prosecutors have duty of prosecuting persons who, not only have authority but also a duty.

B. Exception – Private Prosecutor May Prosecute the Case Provided that the following requisites herein are present: 1. The public prosecutor has a heavy workload or there is a lack of public prosecutors; 2. He must be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor; 3. There must be approval by the Court. Action: Ex Parte Motion, if one has this authority there is no need for the public prosecutor to be there. The private prosecute may prosecute at the end of the prosecution even if there is absence of the public prosecutor provided. It is not revoked by the authority.

C. Private Prosecutor May Prosecute Until End of Trial 1. When so authorized to prosecute the criminal action; 2. Even in the absence of the public prosecutor; 3. Provided such authority is not revoked or withdrawn.

D. In MTC: When Prosecutor Assigned Not Available When the prosecutor assigned there or to the case is not available, the following may prosecute: 1. The offended party; 2. Any peace officer; 3. The public officer charged with the enforcement of the law violated. What if there is a private prosecutor who has authority in the MTC? – Then it is the private prosecutor, the authority given can still be used by the MTC and RTC.

A. Rules on Adultery and Concubinage [Section 5(2)] The party who must file the complaint is only   the offended spouse, if it is not the spouse, the case shall be dismissed (Pilapil v. Ibay-Somera). Instances where the offended party cannot institute criminal prosecution: 1. If he/she does not include both the guilty parties, if both alive, or; 2. If he/she has either: a. Consented to the offense, or b. Pardoned the offenders.

B. Rules on Seduction, Abduction and Acts of Lasciviousness [Section 5(3) and (4)] Party who must file the Complaint: 1. If the offended party is NOT a minor (a) The offended party himself/herself ; (b) The State  – if the offended party dies or becomes incapacitated before she can file a complaint.

2. If the offended party is A MINOR  – has the right to initiate (a) The offended party  – proceedings in independently; (b) If offended party fails to file the complaint, the following in successive order, and exclusive of all other persons; i. Parents ii. Grandparents iii. Guardian (c) The State – when following occurs: i. Offended party dies, or becomes incapacitated before filing, and ii. She has no known parents, grandparents or guardians. Instances where the above Offenses will Not be Prosecuted 1. If the offended party is alive and not incapacitated and the complaint is not filed by: a. The offended party who is not a minor; and b. The offended party who is a minor, or in the proper case, the parents, grandparents, or guardians. 2. If the offender has been expressly pardoned by any of the above.

The act of filing is can be done by the messenger. The complainant sign the complaint, and have it swear under oath, but the filing can be sent. The signing, under our laws, a minor cannot sign, who has a capacity to act.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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Other Crimes under the Child Abuse Act Section 27 enumerates the persons who may file complaint on unlawful acts committed against children.

SECTION 5(5) Rules Governing Defamation Defamation, Libel and Slander This provision talks about defamation which imputes adultery, concubinage, abduction, seduction and acts of lasciviousness. “Ikaw, kabit ka!” One must impute any of these crimes.

General Rule: The complaint or information can be filed by the public prosecutor even without the instance or signature of the offended party.

Exception: Only the offended party can file the complaint if the defamation consists of any of the following offenses: (a) Adultery; (b) Concubinage; (c) Seduction; (d) Abduction; or (e) Acts of Lasciviousness

Sumili v. CFI: She would go through silence rather than suffer

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GO v. LOOYUKO (2007) Go filed the case arising from criminal proceedings and the prosecutor did not agree. What is the general rule? And can the court interfere? Go is the offended party, the private complainant, he has a private prosecutor. So the private prosecutor of Go wanted to present certain witnesses, he asked for subpoena to testify in behalf of Go. The RTC RTC did not agree. The private prosecutor prosecutor went straight to the CA, was the act of the private prosecutor proper? What happened was that there were certain witnesses to be presented but the court did not want to. Go went to the CA asking CA to interfere with the presentation by the prosecutor, interfere with the RTC resolution be prohibited. Can you go to the CA so that they can interfere? No. Refer to Section 5, Rule 110. The private prosecutor went to the CA. In private prosecutor in everything he does must get the conformity of the public prosecutor. Since you went on an appeal you go to the Solicitor General. If you are a private prosecutor, never do anything without the permission of the public prosecutor.

the public humiliation of a public trial.

CASE DISCUSSIONS WILSON CHUA v. PADILLO (2007) Padillo spouses filed complaints against C hua with the NBI. The prosecutor filed an information for estafa against them in the RTC. The issue whether or not CA SOJ to include Wilson and Renita in the information. This issue herein, can the CA interfere with the proceedings of the Secretary of Justice – the answer is no.

COBARRUBIAS v. PEOPLE (2009) A criminal case is questionable, this was questioned via petition for certiorari which alleges GADALEJ on the part of the court. When you file such, it is usually Cobarrubias v. RTC. But what about the complainant? The CA wanted Cobarrubias v. RTC and People. The People should be included in the information. This involves the name of the People of the Philippines, because here we are talking about criminal cases and one party is the accused and the other party is always the People.

The general rule is no. Why? Because of Section 5, which says that prosecution of offense, all criminals action shall be prosecuted be under the control and direction of the public prosecutor, he is under the Department of Justice, now if the prosecutor is wrong in the investigation, the DOJ can correct.

Cobarrubias was charged with FH and he pleaded not guilty and trial followed, RTC judge dismissed the charges and set the other for trial and there are so many issues with case. A motion for clerical correction was filed. When he filed for a petition for certiorari, he did not implead the People,  so the CA ordered Cobarrubias to rename Cobarrubias v. RTC and People,  but he did not comply thus the dismissal.

But the CA is another department of government which the  judiciary is, the courts are in charge of trying case, not with PI which is for the executive. When the CA interferes, it disturbs the justice system. Prosecution is the role of executive; the trial is for the judiciary.

The failure to implead the People as the respondent is not so grave as to warrant the dismissal of the petition. He rectified his error later in the MR. So the Ca should’ve granted.

PEOPLE v. DUCA (2009) As a general rule, no. Courts can only review that decision if there is grave abuse of direction, the business of the court is whether or not the accused is guilty, but as to the determination as to who to charge, it is the work of the prosecution and falls under their authority.

Exception: If there is grave abuse of discretion under Rule 65 which involves this case.

Dismissed the case without informing the OSG. The authority to represent the State in appeals of criminal cases before the CA and SC is solely vested of the OSG. In relation to Rule 110, Section 5. The People is always represented by the public prosecutor, but when the case is appealed whether the CA or the SB, it is imperative that the Solicitor General knows about it. It is the SG who will represent the people in that appealed case.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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If there is no participation of the SG it is like there no public prosecutor in contravention to Section 5, Rule 110. The State had no lawyer.

LEVISTE v. ALAMEDA (2010) Leviste was charged with Homicide for the death of Rafael de las Alas before the RTC. Motion for Reinvestigation the way they formulated the rules is not according to the sequence. You file the complaint to the prosecution office who will conduct PI, if probable cause is found it files the information is filed in court. In this case, information already filed, the complaint accused him of murder, after PI the crime was homicide. There is the Motion for Reinvestigation,  the accused were not happy with the results of the PI. He can ask for this. And if granted, the court will send back the file to the prosecutor and he will reinvestigate again. This is normally done by the accused – no need for the consent of public prosecutor, accused is the other, the lawyer of the accused can merely file for a motion for reinvestigation. In this case, the victims wanted a Motion for Reinvestigation, can they? The SC said  yes – provided that there is consent of the public prosecutor. If the public prosecutor agrees to have a reinvestigation, is that agreement binding in court? Is the court obliged to agree?

No. Once a complaint or information is filed, any disquisition rests in the sound discretion of the court, the role of the prosecution is now limited to prosecution, it cannot impose opinion no longer at the court. Once case is in court, any disquisition should be addressed to the court for its consideration and approval. Now, the court is not obliged the court can deny. What if the court grants?  Then the court is deemed to have deferred to the authority of the prosecutor, he cannot intervene anymore, now its back to the prosecutor, wide and far-reaching. Can the judge choose who will conduct reinvestigation? No. The prosecution’s discretion herein lies.

PUNZALAN v. PLATA (2013) Plata filed complaint against Punzalan against the OCP in Mandaluyong. OCP dismissed for lack of sufficient basis. Plata went to the DOJ, but withdrawal for information. It was elevated the resolutions of the DOJ to the CA. The CA ruled in favor of Plata. The CA stated that there is probable cause. Whether or not DOJ findings can be questioned in court? No. The conduct of PI of determining probable cause belongs to the public prosecutor. The only time can court can interfere when the acts of the executive acted in capricious manner.

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Commentaries You initiate the case in the prosecutor’s office, and that they will conduct preliminary investigation which will determine if there is dismissal or on the finding of probable cause – then filing to the court of information. If there are problems to the prosecutor go to the DOJ. When the information is filed in the court, then the court shall have the discretion over the case, the only thing left for the prosecution is to prosecute the case. But as to grant the motion, to decide and to acquit is left to the court. This is the Crespo v. Mogul, after the information is filed, what if there is a motion for reinvestigation the court will now decide, but when it decides and throws back the file to the prosecutor for the reinvestigation, the court loses its discretion. Note the application of separation of powers.

Case:  CA interfered in the goings on of the DOJ, it cannot interfere with the executive branch. The institution of the criminal action rests on the sound discretion of the prosecution whether or not to file the case in court.

WORLD WIDE WEB v. PEOPLE (2014) WWW moved to quash, RTC allowed. PLDT questioned such grant, but PLDT had no personality for failure to getting the conformity of the public prosecutor based on Section 5, Rule 110. Is the conformity required to give PLDT personality. No. Section 5, Rule 110 gives general rule that public prosecutor, but a search warrant is obtained not by the complaint or an information, but by the filing of an application therefore. An application is part of the process, but not the filing of an information. Clearly, an application for a search warrant is not a criminal action.  Therefore, the conformity of the prosecutor is not necessary  in filing the application for the search warrants. Comment: The application for search warrant is outside the rules of criminal actions. Just remember this principle.

NELSON LAI v. PEOPLE (2015) Lai was accused of homicide, Judge Elumba was the public prosecutor on 23 March 1998, thereafter by 27 April 2000 he became a judge and the case to his court. He was supposed to be mandatorily disqualified. Lai was convicted. Judge Elumba defends that he did not personally prosecute for the private prosecutor was the one who handled the case, cross examined the victims entered his appearance long after. Issue: Whether it was Judge Elumba who prosecuted. – Yes. Section 5, Rule 110 states that while there may be private prosecutor it is under the direction and control of the public prosecutor. A private prosecutor appeared still came under the direct control of the public prosecutor of Judge Elumba. The records do not indicate that the private prosecutor who appeared had been duly authorized in writing. The case was remanded due to violation of the right to due process.

Landmark case cited by the SC: Crespo v. Mogul. From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

LAUDE v. JUDGE GINEZ-JABALDE (2015)

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FIRAZA v. PEOPLE (2009)

The  Jennifer Laude case, a Complaint for Murder filed to the OCP Olongapo. The public prosecutor filed an Information for murder in RTC Olongapo. Public prosecutor did not sign her conformity to the Urgent Motion to surrender the custody of Pemberton.

Firaza was an agent of NBI issued with firearm, he was charged with an information was filed against him for unauthorized carrying licence firearm outside residence. He stated that he should be charged of illegal possession of firearm. Was the complaint or information sufficient and valid?

Issue: WON Urgent Motion prosper without signature of the

Yes.  The allegations in in the information, determine what

public prosecutor.

offense is charged. The complained acts should not be in the terms of the statute as long as it can be understood by common knowledge. The words were clear  and self-explanatory. By reading that information, the ordinary person know what acts he committed that the made resulted in the filing of the offense. It is already sufficient, as he was carrying a firearm outside the residence. You do not have to follow the wording of the law, as long as it can b e understood.

Held: No. Procedural mandates that all criminal action commenced or by information shall be under the direction and control of public prosecutor. Thus, the refusal of the public prosecutor to sign was a clear manifestation. Anything that the private complainant wants to do he or she has to get the approval of the public prosecutor.

CRISTOBAL v. PEOPLE (2011)

 A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complaint of as constituting the offense; the name of the offended party’ the approximate date of the commission of the offense; and the place where the offense was committed.

Cristobal was charged with Section 9(e) of RA 8484 for possession a counterfeit access device or access device. He claims that he was not informed, the possession was not alleged in the information. Is the information valid?

 When an offense is committed by more than one person, all of them shall be included in the complaint or information.

Yes. The information is valid. It was clearly stated his name, it was also specified with the violation of the crime, the acts constituting the offense were clearly narrated. It was correct that even the word possession did not appear in the accusatory portion but it existed in the preamble.

What Must be Stated in a Complaint or Information to Make it Sufficient in Form and Substance This is the form, when can you say that the complaint or information is completely valid, then it must state the ff: 1. Name of the accused; when committed by more than one person, all of their names must be stated. 2. The Designation of the offense given by the statute. 3. The Acts or omissions complained of as constituting the offense. 4. The Name of the offended party. 5. The Approximate date of the commission of the offense 6. The Place where the offense was committed. [NDANAP] Q. May accused be convicted of murder where the information fails to describe the weapon he used in stabbing the victim? Yes. The kind or nature of the weapon used in the commission of the crime need not be alleged in complaint of Information. It is not one of the matters required by Section 6, Rule 110.

Commentary on Information Why do you think it is called an information? Who should be informed by the information? The information serves to inform the accused to inform his of the nature of the accusation. The answer is that, it is a constitutional right of the accused  of the charges or accusation. That is why, the information must be sufficient in form, that is why Sections 6-12 are important to thoroughly inform the accused. That is why must look at the sufficiency of the information not the crime, we look at the information.

PEOPLE v. ASILAN (2012) Asilan was charged with the complex crime Direct Assault with Murder. Asilan contends he should not have been convicted because of acts of treachery was not specifically alleged in the information thus he was only liable for homicide. Q. Whether the information was sufficient. Yes. The qualifying circumstance was treachery was specifically alleged in the information. What to remember is that, one cannot be convicted if the qualifying circumstance are not allege. Here it is treachery, it is important to describe how the treachery was committed? The specific acts of treachery?

No need, it has to prove in court during the presentation of evidence but for the purpose in making the information, it is enough that the crime is qualified by treachery. Just alleged it no need describe just prove the elements of the crime. But the specific description of the qualifying circumstance is no need. The manner – is not important to allege that.

PEOPLE v. DELIOLA (2016) Deliola was charged with two counts of statutory rape, he argues that the information that the first crime was committed “sometime in June 2002”. Was it information sufficient? Yes. Time of commission is not an essential element to establish element of rape. Section 6, Rule 110 require the approximate date and not the precise date. It is sufficient that the date was June 2002. This is specific enough for the purpose of establishing the offense of rape.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

PEOPLE v. CILOT (2014) Cilot and Brigole was convicted of the complex crime of Kidnapping with Rape. The information was not sufficient. In charging the commission of a complex offense, the information must allege each element of the compromise offense with the same precision that would be necessary if they were made the subject of a separate prosecution. An information charging a crime of kidnapping with rape should include that which alleges the commission of kidnapping qualified by extortion of ransom and that which alleges on the same occasion. In other words, there were four separate informations. But at the end of the day, they were convicted with the special complex crime of kidnapping with rape. How can the court accuse of such if the informations only charge with simple crimes? They were not informed of the crime which they were convicted, for special complex crime has different elements, it should have been described in the information how it was committed.

No. The erroneous designation of his name in the information will not vitiate it, as it was clearly proven that the accused, was part of the group that was arrested, hogtied and killed the victim. Besides, Cultura did not raise question of his identity during the arraignment. His acquiescence to be tried under the name “Jose” at that stage of the case is deemed to be a waiver on his part to raise the question (People v. Cagadas , 193 SCRA 216, 23 Jan. 1996).

Three Instances Accused Needs to Appear Personally 1. Arraignment 2. For purposes of identification 3. Conviction The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing.

Designation of the Offense 1. The complaint or information shall: 1.

One cannot be charged with a certain simple crime and be convicted of a special complex crime if the elements do not

match. The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint.

Name of the Accused 1. What Must be Stated i n the Information a. The name and surname of the accused; or b. Any appellation or nickname by which he has been or is known

2. If the Name of the Accused Cannot be Ascertained a. He must be described under a fictitious b.

name (e.g. John Doe or Juan dela Cruz) There must be accompanying statement that his true name is unknown.

3. Effect if the true name of the accused is thereafter disclosed by him or appears in some other manner to the court. o Such true name shall be inserted in the complaint or information.

Erroneous Designation of Name Should accused be acquitted considering that his name was erroneously designated in the information? 

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2.

State the designation of the offense given by the statute; 2. Aver the acts or omissions constituting the offense, and (specially the elements of offense) 3. Specify its qualifying and aggravating circumstances. If there is no designation of the offense – reference shall be made to the section or subsection of the statute punishing it (like provision number).

Designation Not Controlling The interlocutory paragraph of the information states that the accused is being charged with simple theft , but the body containing the accusatory portion mentions that he took registered mail. May he be convicted with qualified theft?  –  – Yes. The averments in the complaint or information characterize the crime to be prosecuted and determine the court before which the case must be tried. What controls is not the designation of the offense but the description thereof as alleged in the information (Avecilla v. People, 209 SCRA 466, 2 June 1992).

When Section Needs to be Specified It is only when there is no specific name given to the offense that reference to the section or subsection of that statute punishing it may be made, which usually applies to special laws, in which case the offenses is described as a violation of the statute which defines and penalizes it. Moreover the real nature of the criminal charge is determined not from the caption or preamble of the information, nor from the specification of the provision of law, as there are mere conclusion of law. Rather, the nature of the accusation is determined by the actual recital of facts in the complaint or the information (People v. Gutierrez,  403 SCRA 123, 9 May 2003).

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

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Commentaries

Held: Yes. The aggravating circumstances of craft and price or

So the Revised Penal Code have the list of all felonies and we also have the special laws. Now there are special laws that do not have names. So, if there is no designation of the offense, the reference shall be made through the section or subsections.

reward even if proved, can neither be considered because they were not specifically alleged in the information. Section 8 of Rule 110 requires that the information specify the aggravating circumstances attending the commission of the crime for it to be considered in the imposition of penalty. This requirement is beneficial  to an accused and may therefore be given retroactive effect.

What if there is a conflict in the designation?  According   According to the Supreme Court, the designation of the offense is not material, what is material are the averments in the body of information, thus an error in the offense will not invalidate the information.

Exception: If the facts contained in the body are s o ambiguous as to predict two or more interpretation. The designation then appearing in the caption will be in control. The designation was trespass to dwelling, but the body states that it was acts of lasciviousness, you follow either designation (US v. Ticzon ). The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.

How the Allegations in the Information Shall be Stated 1. It is not necessary that they be stated in the language used in the statute;

2. They just have to be stated in ordinary and concise 3.

language; (no need to use legalese) The terms must be sufficient: a. Enable a person of common understanding to know: (something driver can understand) i. What offense is being charged ii. Its qualifying and aggravating circumstance, and b. For the court to pronounce judgment.

Example: “intent to kill” or “intent to gain”, these are technical terms you can use other phrases.

Retroactivity of the Rule To illustrate the retroactive operation of Section 8 and 9 we refer to the case of People v. Sayaboc, 419 SCRA 659.

PEOPLE v. SAYABOC (2004) Accused was convicted by the RTC of murder. Among others, the court appreciated the aggravating circumstance of craft and price or reward which were not alleged in the information, albeit it provided during trial. The information was dated 17 April 1995. On 1 Dec 2000, the 2000 Rules on Criminal Procedure took effect. Section 8 and 9 require of Rule 110 require aggravating and qualifying circumstances to be alleged in the information, whereas the 1985 Rules did not.

Issue: Should Section 8 and 9 be given retroactive effect?

Allegation of Recidivism In order to appreciate recidivism as aggravating circumstance, it is necessary to allege in the information and to attach certified true copies of the sentences previously meted out to the accused (People v. Dacillo,  427 SCRA 528).

Allegation in Preamble of Information What is controlling is the description of the criminal act. The real nature of the criminal charge is determined not from the caption or the preamble of the information nor from the specification of the provision of law alleged to have been violated, but from the actual recital of the facts as alleged in the body of the information (People v. Bali-Balita,  340 SCRA 540). The age of the victim at the time of the filing of the complaint merely appears in the caption or preamble thereof as a description of her as the private complainant. Her age at the time the incident was not specified in the accusatory portion of the complaint. Such omission is prejudicial to the right of the accused to be informed of the nature of the accusation against him. It is not sufficient to simply allege the qualifying circumstances in the caption or preamble, these must be alleged in the body (People v. Mendoza,  31 July 2003). However, in another case: Nothing in the rules mandates the material allegations should be stated in the body and not in the preamble or caption of the information. Instead, both sections state that as long as pertinent and significant allegations are enumerated in the information in would be deemed sufficient in form and in substance. It is immaterial whether such circumstances were mentioned in the opening paragraph of the information or in the second paragraph, the preamble should not be treated as a mere grouping of descriptive words and phrases (People v. Villanueva, 413 SCRA 431).

MICHAEL MALTO v. PEOPLE (2007) Malto was charged by Section 5(b), Article III of RA 7610. The information was alleged now with Section 5(a) of the same act. Why was it erroneous? It was changed to Section 5(a), the RTC found him guilty for violation Section 5(a). What is the problem with that. The information originally charged was not falling in the enumeration under Section 5(a) and not Section 5(b). The failure of designation by statute or erroneous specification does not vitiate the information, the designation of the offense but the actual offenses. Section 5(a) concerns with prostitution but Section 5(b) it punishes sexual intercourse not only with prostitution but also for other sexual abuse. The information did not alleged anything in connection with child prostitution.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

What controls is not the title but the allegations. The purpose is to inform the accused, it does not matter to the accused whether it not is 5(a) or 5(b) it does not really matter towards for the accused – it did not fail to information   it is based whether or not the accused is sufficiently informed. In here the acts he committed clearly stated therein.

PEOPLE v. ARMANDO RODAS (2007) Rodas was charged with murder of Asenda. Whether or not the descriptive words qualifying or qualified by   to qualify the offense. No it is not necessary , merely required that the information allege, specify or enumerate. It is the specific allegation of the attendant circumstance. It need not be expressly stated. All you have to do is that the qualifying circumstance are alleged in information, no need to use the words qualified by them are not part of the information.

SOMBILON v. PEOPLE (2009) Sombilon was charged with Acts of Lasciviousness and RTC was charged with aggravating circumstance of taking advantage of his public position. It was not alleged in the information. Nothing in the information alleges such aggravating circumstances.

Section 9  provides that aggravating circumstances must be stated. The thing is, this requirement only came out in the 2000 rules, when was the criminal case instituted in 1999. The court retroactively applied because it is beneficial to the accused. It was not placed in the information, and the court found that the accused – it was according to the rules at that time, but when it reached at the SC, the new rules appeared, since this is not an ex post facto, it is a procedural law which is favorable to the accused then it must be given retroactive effect.

PEOPLE v. TUANDO (2016) Tuando contends that his right to be informed of the nature and cause of accusation against him was violated when the appellate court affirmed his conviction despite the fact that the crime of which he was convicted by the trial court was different from the one he pleaded to and was charged with. To support  People v. Valdesancho where his argument, he cited the case of  People the Court acquitted the accused due to the denial of his right to due process as he was charged with rape committed on 15 August 1994 and 16 August 1994, but was convicted for crimes of rape committed on 15 and 16 August 1993.

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In fact, he was able to present evidence based on sweetheart defense in that he and AAA were lovers and that they had a consensual sexual intercourse on the said date. During trial, he testified that he and AAA were in a secret relationship as husband and wife and he was surprised when he was charged with rape (he is contesting the charge of qualified rape). As embodied in Section 14 (1), Article III of the 1987 Constitution, no person shall be held to answer for a criminal offense without due process of law. Further, paragraph 2 of the same section, it provides that in all criminal prosecutions, the accused has a right to be informed of the nature and cause of the accusation against him. It is further provided under Sections 8 and 9 of Rule 110 of the Revised Rules of Court that a complaint or information to be filed in court must contain a designation given to the offense by the statute, besides the statement of the acts or omissions constituting the same, and if there is no such designation, reference should be made to the section or subsection of the statute punishing it and the acts or omissions complained of as constituting the offense. The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of its essential i ngredients occurred at some place within the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the offense charged for is necessary for its identificatio identification. n.

How the Place of Commission Must be Stated General Rule: It may be sated generally in a sense that it can be understood from its allegations that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court. Exceptions: It must be specific when the particular place it was committed on the following instances: 1. It constitutes an essential element of the crime charged; or 2. It is necessary for its identification. Example: Polling place in election offenses, like precinct No. 333 and not precinct No. 555.

Erroneous Designation of the Place The court disagrees with the accused. His reliance on the cited case is misplaced. In the Valdesancho case, this Court acquitted the accused and held that his right to due process was violated since he was not able to present evidence to prove where he was on 15 and 16 August 1993. He was not given any opportunity to defend himself of the crimes of rape allegedly committed on the earlier dates. But, the facts of the cited case and this case are different from each other. In this case, the accused was charged with rape committed sometime in January 2006 against AAA. He was able to present evidence proving where he was on January 2006 when the crime was committed.

Where the time or place or any other fact alleged is not an essential element of the crime charged, conviction may be had on proof of the commission of the crime, even if it appears that the crime was not committed at the precise time or place alleged (People v. Lucas,  232 SCRA 537, 25 May 1994). It is not necessary to state in the complaint or information the precise date of the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Date of Commission of the Offense General Rule: It is not necessary to state in the complaint or information the precise date the offense was committed as the offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. Exception: It is necessary to state the precise date of the offense was committed when it it’s a material ingredient of the offense. Violation of the liquor ban; The crime of infanticide, killing of 72 hour-old baby. 

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PEOPLE v. LAMBERTO RAFON (2007) He was charged with rape in 1994 but was convicted of acts in1993 one year gap is no problem.

PEOPLE v. WILLIAM CHING (2007) Between 1996 to 1998 – two year gap, there is no problem. There is no problem it is for the court to determine. The Supreme Court is not strict as to the date and time of the commission of the offense.

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PEOPLE v. JALBUENA (2007) Indefinite Date of Commission On or about . The words on or about envisage a period, months or even 2 to 4 years. They may prove that the crime charged was committed on or about September 15, 1998 and on or about October 22, 1998 (People v. Lizada , 396 SCRA 657).

Appellant questions as fatally defective the information for failure to allege the date and time of the commission of the offense charge, thus violating his constitutionally protected right to be informed of the nature and cause of his accusation against him of the opportunity to prepare for his defense.

On or about August 1996. The failure to specify the exact dates or times when the rapes occurred does not ipso facto make the information defective on its face as this is not an element of the offense.

In rape, the gravamen of offense, being the carnal knowledge of a woman, the date is not  an   an essential element, hence, the specification of the exact date of time of its commission is not important.

The gravamen of rape is carnal knowledge under any of the circumstances. As long as it is alleged that the offense was committed at any time as near as the actual date when the offense was committed (People v. Espinosa, 432 SCRA 86).

In statutory rape, like in this case, what matters most is that the information alleges that the victim is a minor under twelve years of age and that the accused had carnal knowledge of her.

From 1977 to December 27, 1983.  This date alleged now makes the information seriously defective.  It places on accused the unfair and unreasonable burden of having to recall their activities over a span of more than 2,500 days.

It is a burden nobody should be made to bear. The prosecutor must make more definite and particular the time of the commission of the crime attributed accused. If he cannot, the case must be dismissed (Rocarberte v. People, 193 SCRA 152).

Remedy when Date is Not Specific The remedy is a motion for bill of particulars . The failure of the accused to move for the specification of the date when the alleged crime was committed or for the quashal of the Information on the ground that it does not conform substantially to the prescribed form deprives him of the right to object evidence which could lawfully be introduced and admitted under an information of general terms but which sufficient charges a crime ( People v. Desuyo , 381 SCRA 235).

PEOPLE v. IBANEZ (2007) Ibanez was charged with three counts of rape it was alleged that it was alleged that it happened in 1997 -1998 -1999 in three different criminal cases. He argues that the informations are not explicit as to the dates of the rape. The court ruled that a complaint or information is sufficient if it states the approximate state. Section 11, Rule 110, does not require precise aside from the exceptions. Is the exact dates are essential element of rape – No. Hence, the exact date of the commission of the crime an essential element or rape. Sometime in the month of – no problem.

If accused-appellant found the information defective as it bears only the month and year of the incident complained of, he should have filed a Motion for Bill of P articulars, as provided for under Rule 116, before he entered a plea. His failure to do so amounted to a waiver of the defect or detail desired in the information. At all events, accused-appellant participated in the trial and never objected to the presentation of evidence by the prosecution that the rape was committed on or about the month of August 1996.

ZAPANTA v. PEOPLE (2013) The petitioner submits that, while the information charged him for acts committed "sometime in the month of October, 2001," he was convicted for acts not covered by the information, i.e., November 2001, thus depriving him of his constitutional right to be informed of the nature and cause of the accusation against him. He further argues that the prosecution failed to establish the fact of the loss of the steel beams since the corpus delicti was never identified and offered in evidence. The petition lacks merit. Conformably with these provisions, when the date given in the complaint is not of the essence of the offense, it need not be proven as alleged; thus, the complaint will be sustained if the proof shows that the offense was committed at any date within the period of the statute of limitations and before the commencement of the action. In this case, the petitioner had been fully apprised of the charge of qualified theft since the information stated the approximate date of the commission of the offense through the words "sometime in the month of October, 2001."

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

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The petitioner could reasonably deduce the nature of the criminal act with which he was charged from a reading of the contents of the information, as well as gather by such reading whatever he needed to know about the charge to enable him to prepare his defense.

3. If the true name of the offended party par ty is thereafter disclosed or ascertained: a. The court must cause such true name to be

We stress that the information did not have to state the precise date when the offense was committed, as to be inclusive of the month of "November 2001" since the date was not a material element of the offense.

4. If offenses against property, if the name of the offended is unknown: a. The property must be described with such

As such, the offense of qualified theft could be alleged to be committed on a date as near as possible to the actual date of its commission. Clearly, the month of November is the month right after October.

5. If the offended party is a juridical person: a. It is sufficient to state: b. There is no need to aver that it is a juridical

inserted in the complaint or information and the record;

particularly as to property identify the offense charged.

person or that it is organized in accordance with law.

PEOPLE v. BUCA (2015) The conviction of accused-appellant based on the Information stating that the crime was committed sometime before December 24, 2002, despite the fact that the crime was committed on December 24, 2002, is valid. The Court does not agree with accused-appellant. It bears stressing that the precise date of the commission of the crime of rape is not an essential element of the crime. Failure to specify the exact date when the rape was committed does not render the Information defective. The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by  which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. (a) In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. (b) If the true name of the of the person against whom or against whose properly the offense was committed is thereafter disclosed or ascertained, the court must cause the true name to be inserted in the complaint or information and the record. (c) If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a  juridical person or that it is organized in accordance accordance  with law.

Name of the Offended Party 1. What the complaint or information must state: a. In the name and surname of the offended party; or

b. Any appellation or nickname by which such person has been or is known.

2. If there is no better way of identifying them; (a) He must be described in under a fictitious name;

EDUARDO RICARZE v. CA (2007) Ricarze was employee responsible for checks collections, he forge the signature. Upon discovery, Caltex filed for estafa through falsification of commercial documents. After the PI. In the information, the designated offended party was Caltex. PCI Bank substituted Caltex. Whether the substitution to PCIBank is fatal to the information filed. No. The important thing in cases of property, the property must be described. The designation of offended party not absolutely indispensable, the name error is mere formal defect. The check were properly described the substitution by Caltex by PCIBank. Under Section 12, so what if the offended party changes?  A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses.

Duplicity of the Offense GENERAL RULE: That a complaint or information must charge only

one offense. EXCEPTION: A complaint or information may charge more than

one offense when the law prescribes a single punishment for various offenses.

Special Complex Crimes Rape with homicide. Homicide committed on the occasion or by reason of the rape, loses its character as an independent offense, but assumes a new character, and functions like a qualifying circumstance.

However, by fiction of law, it is merged with rape to constitute a constituent element of a special complex crime of rape with a specific penalty which is in the highest degree. An information must charge but one offense, except only in those cases in which existing laws prescribe a simple punishment for various offenses. Rape with homicide comes within the exception ( People v. Sanchez, 227 SCRA 627).

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Conviction of Component Crimes People v. Nardo 270 SCRA 672: The accused here was charged in one information with multiple murder and double frustrated murder. While the trial court convicted him of the charge, it appears that what he actually committed were 4 separate crimes of murder and 2 crimes of attempted murder. May the SC on review convict him of all component offenses?

Yes. Generally, an accused may only be convicted only of the crime charged in the information, or of an offense which necessarily includes that which was charged or included therein.

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Santiago v. People.  She approved 32 aliens who were not allowed to enter, how many informations to be filed? You do not have to separate the name, you can only file one information if only names is the issue.

One shot three deaths – one information; three shots and three deaths – different information. But what about machine gun, there is many crimes as many victims (PP v. Tabaco).

4. Absorption Doctrine.  In Enrile v. Salazar, where the crime of rebellion absorbs murder, homicide and injuries.

5. Special Complex Crimes  – specially named in provisions However, in this case, the information charging accused further states that “accused, with intent to kill and with the qualifying circumstance of treachery armed with M16 Armalite Rifles did shoot and fire in a sudden and unexpected manner.

under the RPC like Robbery with Homicide. If there are many ways to commit a crime was made in the information it is not duplicitous: PP v. Buendiaje: The information not duplicitous for the crimes charged were only the manners in the committing the same offense. 

In effect, it imputed to accused the commission of several felonies. Yet, accused did not move to quash the information on the ground of multiplicity of charges.

SORIANO v. RP (2009) Neither did he object thereto at any other time. Consequently, such defect is deemed waived, and the Court may validly render  judgment against him for as many crimes as were alleged and proven.

Soriano and Ilagan were officers of Rural Bank of San Miguel as offices they falsified loan application and make appear that two people have obtained. The state prosecutor charged them of Section 93 of RA 337 as amended by PD 1795 (DOSRI).

Duplicitous Information  – information charging for more than

On the same date an information for estafa thru falsification of commercial document on the ground that more than one offense is charged with DOSRI rules and estafa and that they were duplicitous?

one offense. When it prescribes single punishment, it is allowed in an information. 1. Delito Complejo  – where the crime is a necessary means like estafa through falsification, for the is only one crime, only one penalty, like crimes under Article 48 under the Revised Penal Code. Reckless Imprudence Resulting Homicide – this applies to culpable felonies; the accused can be charged (People v. Glen de los Santos).

No. Soriano was faced not with one information but with more than one information charging a different offense, violation of DOSRI and estafa. They erroneously invoked Section 13 to ground to quash information. They were s eparate informations, there was really nothing wrong.

GUTIERREZ v. HOUSE OF REPRESENTATIVES (2011) 2. Delito Compuesto  – where a single act constitutes two or more grave or less grave felonies. Like one gunshot killing two or more people. The effect is the same, then it is the crime with higher penalty, imposed in its maximum period.

3. Delito Continuado – a series of act arising from a single criminal intent. For example A wants to steal 10 cows, but X has three, Y has three and Z has four so A steals their cows. They can only be included in one information (People v. Tumlos).

Two impeachment complaint against OMB Gutierrez, they were consolidation, Gutierrez questions on ground of Section 13. Does this apply to impeachment cases? No. The constitution allows the indictment for multiple grounds as in the Articles of Impeachment. An impeachment complaint need not allege only one impeachable offense. In other words, this rule does not apply to impeachment proceedings, there are many violation which could include Articles of Impeachment.

PEOPLE v. BRIOSO (2016) People v. Jaranillo – roosters are taken from two coops there are two acts of stealing but only one intent, so one crime. People v. Sabun – a lawyer collects in a monthly basis, there is no need to file for every month, you can lump everything together in one information. This falls under the single larceny doctrine. The following are not considered to be single larceny like multiple estafa and multiple malversation.

Brioso was charged with statutory rape, the information that he inserted a finger in vagina of 4 year old and have carnal knowledge, when it reached SC he found him both of statutory rape and rape with sexual assault. Yes. Section 3, Rule 120 applies. When two or more offense charged in the single complaint or information but the accused fail to object to it before trial, the court may convict him as many offenses as are charged and proved.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Brioso failed to quash the information before the trial. Therefore, he can be convicted with the two counts of rape. It can only be surmised, he should have objected.

PEOPLE v. ARENAS (2016) Arenas was charged for violation of RA 9165 before RTC for selling two sachets of shabu as well as possession with intent to sell. And for violating Section 5 and Section 11. Arenas argued that the RTC erred for charging her by a duplicitous information. There is a duplicitous information, but Section of Rule 120 also states when two or more offense but the accused fails to object before the trial  as many as those charged. The failure to have motion to quash before plea is deemed as a waiver.

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Two Kinds of Amendment  

Amendment to forms or Formal Amendment Amendment to substance or Substantial Amendment

What the lawyer of the accused should do, look at the information and look at the defects and file for a motion to quash, when it is filed, the prosecutor has the chance to amend the information if there is something wrong with it. The prosecutor do that without asking permission, provided the accused has not entered his plea on arraignment. There is a big difference between amendment and revisions. No formal amendments are allowed.

Before Arraignment GENERAL RULE: A complaint or information may be amended in

Absorption doctrine is not applicable here, It was proven that the possession herein could be separately charged for illegal possession of the sale.

form or in substance even without leave of court. EXCEPTION: 

Under the RA 9165, if A is arrested in buy bust and he charged with selling 5g, and in his possession was 10g, then the possession is absorbed. But if he is selling 10g but found with 50g, then he must charged with possession of 40g, what absorbed is only 10g. 

Can the accused complain? Yes, but if you want to complain you do it in a motion to quash.  Otherwise, information will not be void, it is merely duplicitous, it is for the accused to complain about it due to Rule 120.  A complaint or information may be amended, in form or in substance,  without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and  when it can be done without causing prejudice to the rights of the accused. However, any amendment before plea, which downgrade the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Section 19 of Rule 119, provided the accused shall not be placed double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.

Rules on Amendment of the Information If the information is defective, like duplicitous like the name or date in information, there is always a way to repair a defective information and that is what we call an amendment under this Section.

If the amendment (when it requires leave of court) (a) Downgrades the nature of offense charged in, or (b) Excludes any accused from the complaint or information. It can be made only: (a) Upon motion by the prosecutor (b) With the notice to the offended party, and (c) With leave of court It is no longer a matter of right we have to ask permission of court. 

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What the court must do in resolving the motion either granting or disallowing it: (a) It shall state it reasons, and (b) It shall furnish copies of its order to all parties, especially the offended party.

After Arraignment and During Trial A. Amendment as to form may only be made if: 1. 2.

It is done with leave of court, and It does not prejudice the accused

B. Amendment as to substance – NOT ALLOWED. Definitely not allowed, only formal amendments allowed after arraignment.

Rules on Substitution Means you replace with a new information, because the offense charged is totally different from the offense proven during the trial, when it is wholly different. For example the offense charged was murder, the crime was homicide there is no need for it is necessarily included. S o, substitution only applies when are two totally different.

Tests to Determine the Need for Substitution 1. If evidence is applicable to the other no need. 2. When the second offense is exactly the same. 3. When it is frustration or attempt of the first. 4. When is necessarily includes or is included in first.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Ground for substitution: It appears any time before judgment that a mistake has been made in charging the proper offense. Effects when the above ground exists: A new information charging the proper offense may be filed provided the accused shall not be placed in double jeopardy. The court shall dismiss the original complaint or information, and The court may require the witnesses to give bail for their appearance at the trial. 

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b. Change in description of the injury After the accused was arraigned for murder, the judge ordered the change of the description of some wounds from lacerated to stab in the information in order to conform with the description of the victim’s wounds in the autopsy report. Is there a need to re-arraign the accused? No. A re-arraignment is only necessary where the change or amendment of the information involves in the changing of the proper offense. Here, the change in the information was not effected to correct a mistake changing the offense charged in the information (People v. Jaralba, 226 SCRA 602, 1993).

Amendment and Substitution, Distinguished  Amendment and substitution may differ in the four following aspects as stated in Galvez v. CA 237 SCRA 685 (1994): 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge; 2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3. Where amendment is to form, no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and 4. An amended information refers to the same  offense charged in the original information or to an offense which necessarily includes or is necessarily included  in  in the original charge, hence substantial amendments to the information after the plea has been take cannot be made over the objection of the accused, for the original information would be withdrawn, the accused could invoke double jeopardy. Substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy.

Illustration of Formal Amendments a. Allegation of insanity of the victim After accused was arraigned but before trial commenced, the court allowed the amendment of the information to include the allegation that by reason of rape the victim became insane, is the amendment proper? Yes. The subject amendment is clearly not one of substance but of form. The insertion of the phrase that the victim has become insane by reason or on occasion of the rape in the Information merely raised the penalty that may be imposed in case of conviction and does not charge another offense different fro m that charged in the original information. Whatever defense accused may have raised under the original information for rape committed with a deadly weapon equally applies to rape committed with a deadly weapon where the victim has become insane by reason or on occasion of the rape. The amendment did not affect the substantial rights of the accused ( People v. Degamo, 402 SCRA 133).

c.

Change in date of commission

The amended date in all 19 informations is not at all material to the offenses charged because the basis thereof is not the date of the construction but the defective construction of the 46 dwelling units. Such amendment does not prejudice the rights of accused since it would not alter the nature of the offense charged.

d. Insertion of the word “printed” Here it was just to clarify the facts, the original information clearly stated that the newspaper is published in Makati. It is merely a formal amendment wen it merely adds specification to eliminate vagueness in the information and not to introduce new and material facts and merely states with additional precision something which is already contained in the original information and which therefore, adds nothing essential for conviction of crime charged ( Banal III v. Panganiban,  2005).

e.

Allegation of conspiracy

The addition of the phrase, “conspiring, confederating and helping one another” does not change the nature of his participation as principal in the killing. Whether under the original or amended information, accused would have to defend himself as the People makes a case against hi m and secures for public prosecution for punishment for stabbing to death, using superior strength, a fellow citizen whose help and safety society as a whole is interested (Buhat v. CA, 1996).

f.

Other formal amendments

In the case of Matalam v. Sandiganbayan 455 SCRA 737, 12 April 2005, it enumerated the following as to have been held to be merely formal amendments: 1. New allegations which related only to the range of the penalty that the court might impose in the event of conviction; 2. An amendment which does not charge another offense different or distinct from that charged in the original one; 3. Additional allegations which do not alter the theory of the prosecution of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; 4. An amendment which does not adversely affect any substantial rights of the accused; 5. An amendment that merely adds specifications to eliminate any vagueness in the information information and not to

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

introduce new and material facts, and merely states with additional precision something which is already in the original information and which adds nothing essential for conviction for the crime charged.

Illustrations of Substantial Amendments a. Homicide to Murder To amend the information so as to change the crime charged from homicide to the more serious offense of murder after the accused had pleaded not guilty to the former is indubitably proscribed by Rule 110, Section 14. For certainly a change from homicide to murder is not a matter of form; it is one of substance with very serious consequence ( Buhat v. CA, 1996).

b. Robbery to Robbery in an Uninhabited Place The proposed amendments are clearly substantial from Article 299 to Article 302 of the RPC, thereby exposing the accused to a higher penalty (People v. Montenegro  159 SCRA 236, 1988).

c.

Allegation of Relationship

After the accused has been arraigned, an amendment of the information for rape to be made alleged the relationship of accused to the victim is not allowed. The amendment is clearly substantial in character as it had the effect changing the crime charged. Such amendment can no longer be done through amendment but only be substitution ( People v. Sandoval ).

EDUARDO RICARZE v. CA (2007) It was only after the prosecution had rested its case when SRMO entered its appearance with PCIB as private respondent. There is no violation, the substitution of Caltex by PCIB is not a substantial amendment it did not alter the basis of the charge nor did it result in prejudice. Changing the offended party is merely a formal amendment, but here leave of court required for it was after the arraignment.

PACOY v. AFABLE (2007) Judge ordered the change of charge from homicide to murder. No. It was only a formal amendment and not a substantial amendment, provided if does not prejudice the rights of the accused. The only change made was in the caption of the case and preamble it changed from homicide to murder. No change in the recital of facts or determination of the jurisdiction of the court not all changed in the act committed. Test: Whether a defense under the complaint can stand, since there is no change it could not have any affect on the theory of the prosecution on the case.

RAMON ALBERT v. SANDIGANBAYAN (2009) Albert et al. were charged with RA 3019; the difference was from ross neglect of duty to gross inexcusable negligence. Is it substantial or prejudicial? No. This is allowed even after arraignment and plea being beneficial of the accused, it is considered as a modality in the commission of the offense. Thus, the same is considered as an amendment in form. 

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BALTAZAR v. CHUA (2009) Downgraded the charges and dropping charges for Jaime, the City Prosecutor filed a motion and withdraw information and an admission for a new information. The prosecution cannot impose with the proceedings of the court. It involves two courts, there was a Motion for Amendment that was filed by the private complainants. The original charge was homicide, the case was moved to another court to put it back to murder. The Crespo v. Mogul doctrine herein applies.

SALUDAGA v. SB (2010) Saludaga here was Mayor entered with the Pakyaw Contract without public bidding thus he was charged with Section 3(e) of RA 3019 by causing undue injury to the government. A new basis was now coffering unwarranted benefit  from  from undue injury. There was no substitution the refiled information charged the same offense, it was only the mode  of commission that was charged. And it is not a substantial amendment, because the refiled information is founded in the same transaction the evidentiary requirement remains the same – in conclusion what changed was mode, hence it was only a formal amendment.

LEVISTE v. ALAMEDA (2010) Leviste was charged with Homicide. Reinvestigations is required in substantial amendment. Substantial amendments consists of change in the recital of facts. The information from homicide the murder is one of substance with very serious consequences. It was allowed because it was prior to arraignment, thus the substantial amendment is allowed.

KUMMER v. PEOPLE (2013) Homicide against Kummer. July to June 1988 change. A mere change in the date of time is formal when it does not prejudice the rights of the accused. There is no need for a new arraignment for it is only imperative when it is a substantial amendment. The one month gap is acceptable. Place  where action is to be instituted. – (a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred. (b)  Where an offense is committed committed in a train, aircraft, or other public or private vehicle in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory  where such train, aircraft, or other vehicle passed passed during its trip, including the place of its departure and arrival. (c)  Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law. (d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Venue: Where Action is to be Instituted Rule:  The criminal action shall be instituted and tried in the court of the municipality or territory: 1. Where the offense was committed (for local offenses) 2. Where any of its essential ingredient occurred (for transitory or continuing offenses).

Other Alternative Venues for Institution of an Action 1. Where an offense is committed in a train, aircraft, or

2.

3.

other public or private vehicle in the course of its trip, the criminal action shall be instituted and tried either in the court of: a. The place of its departure; or b. Any municipality or territory where such train, aircraft or vehicle passed during its trip c. Place of arrival Where an offense is committed on board a vessel in the course of its voyage, a. The criminal action shall be instituted and tried in the court of: i. The first port of entry; or ii. Of any municipality or territory where the vessel passed during such voyage. b. Subject to generally accepted principles of international law When the crime is committed outside the Philippines but punishable under Article 2 of the RPC: a. It shall be cognizable by the court where the criminal action is first filed Exterritoriality – any court in the country.

Provisions of Law 

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Article 360 on Libel – where the libel matter is first published, or residence of the victim or office of the public official involved. Cases covered by Sandiganbayan – the SB only has the main court in Manila, one in Cebu and in Cagayan. Section 5, Article VIII – the SC can order the change of venue to avoid miscarriage of justice. If in the interest of justice, it is not safe nor practical to file in that city the court can move it ( Sanchez v. CA, the mayor of Laguna, he was charged of the rape and murder of UP student and her boyfriend, the action was filed in Laguna – it was moved out for his influence, but it has to be the Supreme Court).

TRENAS v. PEOPLE (2012) An information was filed in the RTC charging him with estafa. No other evidence was shown that the offense was committed in Makati. Jurisdiction of a court over the case is determined in the complaint of information. Look at the elements of the crime.

UNION BANK v. PEOPLE (2012) Desi Tomas charged with perjury for making false narrations in an affidavit, executed in Makati and it was submitted to the Pasay. It is the MeTC Makati City. The venue of action states that the crime was done in the false narration is an affidavit under Article 183.

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So how do you determine the elements take place? You look at the information. If one of the elements state the venue. It is not a question of fact, it is a question of whether or not it was stated in the information.

 Where the civil action for recovery of civil liability is instituted i n the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense.

Effect when the Civil Action for Recovery of Civil Liability is Instituted in the Criminal Action 1. When the offended party may intervene in the

2.

prosecution offense: a. When the civil action is for recovery of civil liability instituted in the criminal action. How may the offended party may intervene: a. By counsel.

Intervention, Instances when Prohibited  In Dichaves v. Apalit  333 SCRA 54 (2000), the following are the instances when an offended party is not allowed to take part in the criminal prosecution, as under Rule 111, Section 1, there are three instances: 1. If the civil action has been waived; 2. If the right to institute a separate civil action has been reserved; and 3. If the civil action was filed prior to the criminal action.

Offenses without an Offended Party May a private prosecutor appear in such cases? No. The court held in Ramiscal v. SB 446 SCRA 706 (2004), that a violation of RA 3019 in this case, the offended party is the government which was allegedly deprived of capital gains and documentary stamp taxes.

Q. Where the offended party did not initiate the complaint or institute the prosecution, can he ask for damages is he actually testifies during trial? 

Yes.  If the injured party has not expressly waived the civil liability of the accused nor reserved his right to file a separate civil action, it is error for the court to refuse a request of the injured party during the course of the criminal prosecution.

Q. What if the offended party has desisted?  No. While it may be true that the desistance does not bar the People from prosecuting the criminal action, it does operate however, as a waiver of the right to pursue civil indemnity (People v. Amaca,  277 SCRA 215).

Commentary This section gives us situation when a private offended party may join, when the civil action for recovery of civil liability. A criminal case but under Article 100 of RPC, the offended party can ask for damages – meaning money – compensation for the loss and injury caused to the offended party. When there is an offended party, there is a civil aspect.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

RODRIGUEZ v. PONFERRADA (2005) May a private prosecutor allowed to intervene and participate in estafa cases for the purpose of prosecuting the attached civil liability arising from the issuance of the checks involved which is also the subject matter of the pending BP 22 cases?

Yes. The crimes of estafa and violation of BP 22 are different and distinct from each other. What Rule 111, Section 1(b) prohibits is the reservation to file the corresponding civil action in a BP 22 case. However, a recovery by the offended party under one remedy, however, necessarily bars that under the other. Obviously stemming from the fundamental rule against unjust enrichment,  this is in essence the rationale for the proscription in our law against double recovery.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

RULE 111 PROSECUTION OF CIVIL ACTION a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.  When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefore shall constitute a first lien on the judgment awarding such damages.  Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to i nclude the corresponding civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment.  Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated  with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions.

Rule 111, Section 1: Sections of Discussion A. Effect of Institution of a Criminal Action B. Specifications under BP 22 C. Consolidation of Civil and Criminal Actions

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Every person criminally liable for a felony is also civilly liable.

A. Effect of Institution of a Criminal Action GENERAL RULE:  The civil action for the recovery of civil liability

arising from the offense charged shall be deemed instituted with the criminal action. EXCEPTIONS: The civil action for recovery of civil liability arising

from the offense charged shall be deemed not instituted with the criminal action when the offended party: 1. Waives the civil action (it must be clear) 2. Reserves right to institute the civil action separately; 3. Institutes the civil action prior to the criminal action.

When Reservation of the Right to Institute a Separate Civil Action Must be Made 1. Before the prosecution starts presenting its evidence. 2. Under circumstances affording the offended party a reasonable opportunity to make such reservation.

Docket Fees for Damages Being Claim by Offended Party in the Civil Action  Actual Damages General Rule: Payment of docket/filing fees is not required. Exception: Payment of docket/filing fees is requires when the Rules provided therefor: 1. BP 22 Cases – based on amount of check involved 2. Estafa Cases – based on amount involved Moral, Nominal, Temperate or Exemplary Damages 1. If the amount is specified in the complaint or information: o The corresponding filing fees shall be paid by the offended party upon the filing thereof in court. 2. If the amount is not specified in the complaint or information: o The filing fees therefor shall constitute a first lien on judgment awarding such damages.

Rule on Counterclaim, Cross-Claims, Third Party Complaint 1. They cannot be filed by the accused in the criminal 2.

case, but Any cause of action which could have been subject thereof may be litigated in a separate civil action.

Q.  What are the civil actions deemed instituted in a criminal prosecution under the 2000 Rules of Criminal Procedure?

Ans: Only the civil liability of the accused arising from the crime charged is deemed impliedly i nstituted in a criminal action, that is unless the offended party waives the civil action, reserves the right to institute it separately or institutes it prior to the criminal action.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

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What is deemed instituted in every criminal prosecution is the civil liability arising from the crime or delict per se which is also known as the civil liability ex delicto,  but not those liabilities arising from quasi-delicts (reckless imprudence cases), quasicontracts (like solutio indebiti and negotiorum gestio).

Requisites for Proper Consolidation 1. The civil action has been filed separately; 2. Trial of the civil action has not yet commenced, and 3. There must be an application for consolidation with

In fact, even if a civil action is filed separately, the ex delicto civil liability in the criminal prosecution remains, and the offended party may – subject to the control of the prosecutor – still intervene  in the criminal prosecution in order to protect the remaining civil interest therein ( Philippine Rabbit v. People, 427 SCRA 456, 14 April 2004).

Effect if consolidation is granted:   The trial of both actions

B. Batas Pambansa Bilang 22 Rules in Relation to the Civil Aspect 1. The criminal action for violation of BP 22 shall be 2.

deemed to include the corresponding civil action. Reservation to file the civil action is not allowed.

Rules in Relation to Docket Fees 1. Actual Damages: the offended party shall pay in full 2.

the filing fees based on the amount of the check involved in the case. Moral, Nominal, Temperate or Exemplary Damages: a. If the amount is specified: The offended party shall pay additional filing fees based on the amount alleged therein.

the court trying the criminal case.

shall proceed in accordance with Rule 111, Section 2 governing consolidation of the civil and criminal actions.

Commentaries Those not arising from the crime are called in the independent civil actions they are not deemed instituted. This “arising from the crime” only came out in the 2000 Rules. In the 1985 Rules, everything was deemed instituted. What is the effect? Casupanan v. Laroya  (2002), the new rules came out of December of 2000. The SC discussed the effects: 1. Actions premised on quasi-delict and other independent civil action may be filed separately without the civil action. 2. The judge may no longer the apply the provisions on quasi-delict on basis of the award of civil liability. 3. The pendency of the criminal case will not preclude he offended party from filing for a quasi-delict against the accused.

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b. If the amount are not so alleged but any of these damages are subsequently awarded by the court: The filing fees based on the amount awarded shall constitute a first lien on the judgment. 

When is the claim for civil liability not deemed instituted? You refer to the three exceptions. 

Yakult v. CA Wherein the SC said, when the offended party institutes the civil action after the criminal action but before the presentation of prosecution’s evidence while the criminal action of the civil action; you cannot file a civil action while a criminal action is going on. Like in OJ Simpson, the criminal action was acquitted but in the civil action he was required to pay damages.

Hyatt Industrial v. Asia Dynamic 464 SCRA 454 | 29 July 2005 Hyatt filed with the RTC a complaint for recovery of sum of money (civil case) against Asia Dynamic for the latter’s failure to pay various electric conduits and fittings. Asia had issued checks to cover for the purchase price but they had all bounced. Hyatt filed criminal cases for violation of BP 22.

So how do you distinguish criminal cases from pure civil cases? In criminal cases, you do not pay filing fees for purely criminal case, there is no need to pay docket fees. But for civil cases, you have to. There is always imposition of docket or filing fees. For criminal cases, if there is a prayer for damages, filing fees will be charged but not for actual damages, except BP22 and estafa cases. In civil cases, one has to put the amount of damages in the complaint, so that the clerk can compute, this also applies in criminal cases, but in criminal cases it is considered a lien. If you do not pay in civil cases, it is tantamount to not filing. 

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Q. Considering that Section 1(b) of Rule 111 prohibits the filing of a separate civil action for BP 22 cases, should the civil case be dismissed? 

Yes. Upon filing of the criminal cases for violation of BP 22, the civil action for recovery of the amount of the checks was also impliedly instituted.

C. Consolidation of Civil and Criminal Actions When the offended party files the civil action first, so A filed for a civil case against the alleged killer. The State however, filed later for an affidavit for murder against the alleged the killer. As long as the trial of the civil case has not yet started,  it may be consolidation. The consolidation will be in the move that is trying the criminal case.

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SAMSON CHING v. CA (2007) Nicdao was charged with BP22, in such, the MTC and RTC convicted her, and automatically, upon conviction there is that order to pay the amount of the check. However, the CA reversed the conviction and acquitted her. What happens now to the civil liability?

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

If an accused is convicted by the trial court and such conviction is reversed, what happens to the civil liability? Under Rule 111, the acquittal of the accused does not necessarily extinguish it is based on the r eason of the acquittal. 

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SPOUSES YAP v. FIRST E-BANK (2009) It cannot be applied because when the bank filed the BP22, the amount of the check was the civil aspect of BP 22. Since the civil aspect in a BP 22 case is deemed instituted, what the bank wants is the value of the check. It cannot have for the foreclosure so as to run against the principle of unjust enrichment. The foreclosure case is an independent civil action arising more the contract, because the civil aspect is the amount of the check. 

She cannot be held liable for the civil liability, in the CA it was clearly stated and ruled that she did not issue a worthless check  meaning   meaning she did not commit the crime. There was no crime, and therefore the Court does not have to put the exact words, but in this case, she did not commit the crime.

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HEIRS OF BURGOS v. CA (2010) FERDINAND CRUZ v. MINA (2007) The court reminds us that every person who criminally liable is also civilly liable. Even if there is no claim in the complaint of information for the civil liability, the civil action is deemed instituted under Rule 111, Section 1.

The offended party cannot question the granting of bail, the role of the offended party is there just to ask for civil liability. The issue on bail is a criminal aspect, this is the duty of the prosecution, the rules on bail govern. The question of granting of bail is but an aspect of criminal action preventing him from eluding the action.

GOSIACO v. CHING (2009) Ching was acquitted in the criminal case. Is a corporate office who signed a bouncing check civilly liable? – only when convicted. Since Ching was acquitted in the criminal case, no civil liability. Can a corporation then be impleaded – no. Section 1 of BP 22 requires that the accused must be convicted so that civil liability can be done. In BP 22 cases, the acquittal of the accused will mean that there is no civil liability. It is the corporation who really issues the check Ching only issues it in their behalf. 

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So what now is the remedy? He thought that he cannot file a separate civil action, but the court ruled that nothing in the rule prohibits reservation of separate civil action against the  juridical person. Only concerned with the civil liability with the signatory of the check. For the signatory, the basis is the wrongful act despite the insufficiency of the funds in the account; For juridical body, the very obligation of the check or the consideration for its execution. 

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Therefore, Gosiaco may pursue an independent civil action against ASB for the amount of the checks. The corporation has a totally different civil liability, there is no prohibition against filing a civil action against the corporation for it is not deemed instituted in the case.

CHENG v. SPOUSES SY (2009)  Rule 111 can apply those pending cases.   The estafa were dismissed based on reasonable doubt, the liability can only be civil. The court hold that civil liability for these BP22 cases cannot be done. BP 22 cannot have separate civil action. The civil aspect is deemed instituted; the offended party must be very careful, in BP 22 has to ask the court to rule the civil liability in the criminal case itself. So ask the court to rule on the civil aspect , then appeal the ruling of the civil aspect, that is the only way, otherwise it cannot operate.

HEIRS OF SIMON v. ELVIN CHAN (2011) When it comes to BP 22 cases, no independent civil action, absolutely not even under Article 33 on fraud based on BP 22 because Rule 111, Section 1(b) is clear. If a civil action was filed first then it must be consolidated with the criminal case.

CHUA v. EXECUTIVE JUDGE (2013) Chua could not afford to pay at all once, so he asked if he could pay on a per case basis other than payment of P540K, the clerk stated that he cannot. The motion was denied for it would contravene. Can he pay on a per case basis? Yes. It did not say that it was indivisible obligation. Filing fees when requires are assessed, these pleadings refer to the information in criminal cases. Each 40 count reflect the filing fees of 40 information. For each count represents a different violation. Consolidation refers to purposes of trial, consolidation does not transform the filing fees into one indivisible fee. There are still 40 counts of violation so 40 individual filing fees are to be paid. In BP 22, each and every check has to be proven, identified, there are really 40 different cases.

DY v. PEOPLE (2016) Gloria Dy is the general manger of a company, an information was filed in Gloria Dy before RTC for allegedly misappropriating the money intended for the payment of the loan, while RTC acquitted but it ordered her to pay the amount of the check, CA affirmed because it was merely based on reasonable doubt. Was it correct for them to find civil liability. No. The civil liability they are claiming here is civil liability ex contractu, in here, all elements of estafa are not complete thus there is no delict. Therefore the civil liability is now ex contractu should now be recovered in a separate civil action.

The action based on the contract is an independent civil action, but here there is no crime done thus there is no civil liability ex delicto.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

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NISSAN v. FELIPE (2013) Nissan Gallery filed for violation of BP22 against Felipe. MTC acquitting BP 22 but holding her civilly liable. But CA held no civil liability because there is acquittal.

 After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action.

The rule is that every act or omission punishable by law has its accompanying civil liability. The civil aspect of every criminal case is based on the principle that every person criminally liable is also civilly liable.

If the criminal action is filed after said civil action has already been instituted, the latter shall be suspended in  whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before  judgment on the merits is rendered in the civil action, the same may, upon motion by the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witness presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly.

If the accused, however, is not found to be criminally liable, it does not necessarily mean that he will not likewise be held civilly liable because extinction of the penal action does not carry with it the extinction of the civil action. This rule more specifically applies when: (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the crime of which the accused was acquitted.

During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled.

The civil action based on the delict is extinguished if there is a finding in the final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist or where the accused did not commit the acts or omission imputed to him.

The extinction of the penal action does not carry with it the extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liablity may arise did not exist.

It can, therefore, be concluded that if the judgment is conviction of the accused, then the necessary penalties and civil liabilities arising from the offense or crime shall be imposed.

Effect of Filing a Criminal Case when Civil Action has been Reserved

On the contrary, if the judgment is of acquittal, then the imposition of the civil liability will depend on whether or not the act or omission from which it might arise exists. Purificacion was acquitted because the element of notice of dishonor was not sufficiently established.1âwphi1 Nevertheless, the act or omission from which her civil liability arose, which was the making or the issuing of the subject worthless check, clearly existed. Her acquittal from the criminal charge of BP 22 was based on reasonable doubt and it did not relieve her of the corresponding civil liability. The Court cannot agree more when the MeTC ruled that: A person acquitted of a criminal charge, however, is not necessarily civilly free because the quantum of proof required in criminal prosecution (proof beyond reasonable doubt) is greater than that required for civil liability (mere preponderance of evidence). In order to be completely free from civil liability, a person’s acquittal must be based on the fact he did not commit the offense. If the acquittal is based merely on reasonable doubt, the accused may still be held civilly liable since this does not mean he did not commit the act complained of. It may only be that the facts proved did not constitute the offense charged.

1. If the criminal action was filed f iled ahead of the civil action: A. The separate civil action arising from the crime cannot B.

be instituted until final judgment has been entered in the criminal action; and During the pendency of criminal action, the running of the prescriptive period of the civil action is suspended.

2. If the criminal action is filed after the civil action has been instituted:   at whatever stage A. The civil action shall be suspended  at it may be found before judgment on merit, until final  judgment is rendered in the criminal criminal action. B. The civil action may be consolidated with the criminal action in the court trying the criminal action. NOTE: Here the rule gives you the choice to have the civil action be suspended or consolidated. We have a civil action that is instituted first, the offended party decided to file a civil action for damages, now here comes the prosecution who files for a criminal action, then civil case is considered suspended. It shall be deemed suspended until a decision or final judgment is reached in the criminal case.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Rules in Case of Consolidation C onsolidation

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Effects of Extinction of the Criminal Action

General Rule A. The evidence already adduced in the civil action is deemed

General Rule: It does not cause the extinction of civil action.

automatically reproduced  in  in the criminal action but: 1. The prosecution (should be defense) has the right to cross-examine witness presented by the offended party in the criminal case, and 2. The parties are allowed to present evidence.

 shall be deemed Exception: The civil action based on the delict  shall extinguished if there is a finding in a final judgment that the act or omission from which the civil liability may arise did not exist.

Remedy of the Offended Party: He or she can still file a civil case based on other sources of obligation.

B. Consolidated criminal and civil actions shall be tried jointly. Commentary on Extinction Exception Civil action based on the delict  shall  shall be deemed extinguished if there is a finding in a final judgment that the act or omission from which the civil liablity my arise did not exist.

Remedy of the Offended Party He or she can still file a civil case based on other sources of obligation. Article 1157 of the civil Code enumerates these other sources of obligation from which civil liability may arise as a result from same act or omission: a. Law b. Contract c. Quasi-Contract d. Quasi-Delicts

Commentaries Q. Does the witnesses in the civil action need to testify again? No the evidence will be reproduced. We have two sides in the criminal action: We have the prosecution composed of the People of the Philippines represented by the public prosecutor, the offended party represented by the private prosecutor. The other side, we have the accused, represented by the defense counsel. In a trial we have a witness. The offended party files a separate civil action and the witness is presented, the private prosecutor presents; the cross will be done by the opposing party. Without prejudice to the right of the prosecutor to cross-examine the witness of the offended party; it should have been the right of the private prosecutor to cross-examine the witness. 

What if the prosecution was not able to prove the guilt of beyond reasonable doubt the extinction of criminal action does not carry with the extinction of civil action. If the court says in the decision, that the act or omission where the civil liability came from did not exist – stating that there is no crime. This is when the court must say that the act or omission that it did not exist. If this is included in the decision then civil liability ex delicto cannot be instituted separately. 

Concept Questions Q. Is the non-payment of docket fee a bar to the prosecution of the civil action?  No. The intent is to make the Manchester Doctrine, requiring payment of filing fees at the time of the commencement of an action, applicable to impliedly instituted civil action only when the amount is other than actual damages.

As it now stands, when a civil action is deemed impliedly instituted with the criminal action, the rule are as follows: 1. When “the amount of damages, other than actual is alleged in the complaint or information” file in court then the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial; and 2. In any other case, however – when the amount of damages is not so alleged in the complaint or information filed in court, the corresponding filing fees need not be paid and shall simply constitute a first lien  on the judgment, except in an award for actual damages (General v. Claravall, 195 SCRA 623).

Q. May a civil action for damages arising from a crime be filed Q. Is it mandatory to consolidate? It is not. If you look at the provision, the same may upon motion of the offended party, thus he is not forced to consolidate the case. When is it mandatory? In BP 22 cases, you cannot separate, and if there is a civil case for the value of the check, the moment a BP 22 case is filed, the civil has to be consolidated. It cannot be separately charged, however there are two exceptions: Libel, Article 360 they have to be tried jointly. Under Sandiganbayan Law The consolidated case shall be tried jointly. 

separately from the criminal case?  Yes. A civil action for the recovery of damages arising ex-delicto can be filed separately before the institution of the criminal action which may be done without reservation, or after such institution, provided that a reservation to that effect has been made. If in the meantime the criminal action is instituted, the civil action which has been reserved cannot be commenced until final judgment has been rendered in the criminal case.

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However, in cases provided for in Article 32, 22, 34 and 2176 of the Civil Code, the civil action may be filed.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

HUN HYUNG PARK v. EUNG WON CHOI (2007) Choi was charged with BP 22. Motion for Leave of Court to File Demurrer to Evidence asserting failure to receive notice of dishonor. There was already a dismissal. So, what happens to the civil liability? The MTC did not bother, did Park avail the correct remedy? Yes, the proper procedure should be, if dismissal is based on demurrer; the court should have continued the case, but the MTC did not do it. Thus, correctly appealed the MTC decision in failure to recognize the civil liability. The RTC correctly remanded  this case for the determination of the civil liability. When Park appealed, the RTC affirmed the MTC granting of demurrer and awarded to Park the 1.875M check value. Choi filed the MR (for he was not able to rebut); the RTC, instead of awarding, rightfully remanded.

ANTONIO CHIENG v. SANTOS (2007) What was filed was a violation of BP 22. For reasons of justice and equity, we rule in favor of petitioner. At the threshold, the following discussion merits equal attention. A mortgagecreditor may, in the recovery of a debt secured by a real estate mortgage, institute against the mortgage-debtor either a personal action for debt or a real action to foreclose the mortgage. These remedies available to the mortgage-creditor are deemed alternative and not cumulative. An election of one remedy operates as a waiver of the other. The impliedly instituted civil action in Criminal Cases No. 61290 to No. 615-90 for violation of Batas Pambansa Blg. 22 was, in effect, a collection suit or suit for the recovery of the mortgage-debt since the dishonored checks involved in the said criminal cases were issued by respondent Eulogio to petitioner for the payment of the same loan secured by the Deed of Real Estate Mortgage. Hence, he was deemed to have already availed the remedy of collection suit. Therefore, following the rule on the alternative remedy of mortgage-creditor, Antonio is barred from subsequently resorting to an action for foreclosure.

SC: However, it should be stressed that respondents have not yet fully paid the loan. In fact, respondents themselves admitted that they still owe petitioner the balance of the loan. To allow respondents to benefit from the loan without paying its whole amount to petitioner, and to preclude the petitioner from recovering the remaining balance of the loan, would constitute unjust enrichment at the expense of petitioner.

ROMERO v. PEOPLE (2009) Romero was charged with the crime of reckless imprudence in multiple homicide and multiple serious physical injuries with damage to property in the MTC. There was a head-on collision.

MTC acquitted Sonny Romero of the crime charged, however he was held civilly liable and was ordered to pay heirs so RTC and CA affirmed the decision. Romero argues why is he liable for the civil liability.

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The conclusion of the CA that petitioner was acquitted not because he did not commit the crime charged but because the RTC and the MTC could not ascertain with moral conviction the wanton and reckless manner by which petitioner drove the bus at the time of the accident. Put differently, petitioner was acquitted because the prosecution failed to prove his guilt beyond reasonable doubt. However, his civil liability for the death, injuries and damages arising from the collision is another matter. While petitioner was absolved from criminal liability because his negligence was not proven beyond reasonable doubt, he can still be held civilly liable if his negligence was established by preponderance of evidence. In other words, the failure of the evidence to prove negligence with moral certainty does not negate (and is in fact compatible with) a ruling that there was preponderant evidence of such negligence. And that is sufficient to hold him civilly liable.

ELIZALDE CO v. MUNOZ (2013) Three counts of libel and was acquitted. Co claims damages. he last paragraph of Section 2, Rule 111 of the ROC applies to civil actions to claim civil liability arising from the offense charged, regardless if the action is instituted with or filed separately from the criminal action. Undoubtedly, Section 2, Rule 111 of the ROC governs situations when the offended party opts to institute the civil action separately from the criminal action; hence, its title “When separate civil action is suspended.” Despite this wording, the last paragraph, by its terms, governs all claims for civil liability ex delicto. This is based on Article 100 of the RPC. This dual mode of enforcing civil liability ex delicto does not affect its nature. In other words, it does not matter if waived, reserved or what not the rule is that the civil liability is not automatically extinguished. Even though, civil liability is deemed instituted, the court should continue with the civil aspect of the case and not just totally dismiss it.

CATERPILLAR v. SAMSON (2016) Civil Case No. Q-00-41446, the civil case filed by Caterpillar in the RTC in Quezon City, was for unfair competition , damages and cancellation of trademark , while Criminal Cases Nos. Q02-108043-44 were the criminal prosecution of Samson for unfair competition . The civil case was filed first, thus, the civil case to be consolidated with the criminal case, the SC said no. It does not mean they arose out of the unfair competition act or omission of the civil action. A common element of all such cases for unfair competition - civil and criminal - was fraud. Under Article 33 of the Civil Code, a civil action entirely separate and distinct from the criminal action may be brought by the injured party in cases of fraud, and such civil action shall proceed independently of the criminal prosecution. In view of its being an independent civil action, Civil Case No. Q-00-41446 did not operate as a prejudicial question that  justified the suspension of the proceedings in Criminal Cases Nos. Q-02-108043-44.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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CONSING v. PEOPLE (2013) In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.

Independent Civil Actions When a Civil Action May be Brought Independently by the Offended Party In cases provided in the following provisions of the Civil Code: 1. Article 32  – for damages for violation of Constitutional Rights or breach of liberties; 2. Article 33 – for defamation, fraud and physical injuries 3. Article 34  – for failure of a police officer to render assistance to a person in case of danger to life or property. 4. Article 2176  – for quasi delict  or   or obligations arising from culpa aquiliana (torts).

Rules to be Observed 1. The civil action shall: (a) Proceed independently of criminal action; (b) Require only a preponderance of evidence. 2. The offended party cannot recover damages more than once for the same act or omission charged in the criminal action.

Commentary What are others? Contracts  and quasi-contracts. Let’s say you are passenger in a taxi and the taxi driver was drunk you hit a post, the passenger ins injured. What are the available remedies? 3. Criminal case for reckless imprudence; 4. Quasi-delict 5. Article 2180 – respondiat superior; 6. Damages under culpa contractual based on breach of contract of common carriage; 7. Article 103 – subsidiarily liable The offended party cannot recover civil indemnity for more than once for the same act or omission, based on unjust enrichment. The reservation only refers to civil liability ex delicto, this cannot affect those independent civil actions arising from the enumerated Civil Code grounds.

Q. What are the consequences of the amendments under the 2000 Rules of Criminal Procedure on independent civil actions? (1) The right to bring the foregoing actions based on the Civil Code need not be reserved in the criminal prosecution, since they are not deemed included; (2) The institution or the waiver of the right to file a separate civil action arising from the crime charged does not extinguish the right to bring such action; (3) The only limitation is that the offended party cannot recover more than once for the same act or omission. (Philippine Rabbit v. People, 2004).

Civil actions Plus Builders and Unicapital had separately instituted against him were undeniably of similar mold, i.e., they were both based on fraud, and were thus covered by Article 33 of the Civil Code. Clearly, the Makati criminal case could not be suspended pending the resolution of the Makati civil case that Unicapital had filed. There are allegations in the civil case or complaint that impute fraud, and therefore that falls under independent civil actions (estafa through falsification). The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted under Section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased  without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days f rom notice.  A final judgment rendered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased. If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the the deceased.

Effect of Death of the Accused A. If the death occurs after arraignment and during the pendency of the criminal action. 1. The civil liability of the accused arising from the crime 2.

is extinguished; Independent civil actions and civil liability arising from other sources of obligations may be continued.

B. If death occurs before arraignment 1. The criminal case shall be dismissed, but 2. The offended party may file the proper civil action against the estate of the deceased.

Procedure to Follow in Continuation of the Action in Case of the Death of the Accused 1. The actions after  proper substitution  may be continued against the following: a. Estate of the accused; or b. The legal representative of the accused; or c. The heirs of the accused, who may be substituted for the deceased without requiring the appointment of an executor or administrator.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

2.  The court may appoint a guardian ad litem for the minor heirs;

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Corollarily, the claim for civil liability survives notwithstanding the death of (the) accused, if the same may also be predicated on a source of obligation other than delict.

3. The court shall forthwith order said legal representative to appear and be substituted within a period of 30 days from notice; and

4. A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the d eceased.

Death During Pendency of the Appeal The following are the effects of death of the accused while his appeal is pending: 1. Death of the accused pending appeal of his conviction extinguishes criminal liability as well as the civil liability ex delicto. 2. The claim for civil liability survives notwithstanding the death of the accused if the liability are predicated on other sources other than the delict. 3. Where the civil liability survives, an action for recovery thereof may be pursued by filing a separate civil action which may be enforced either against the executor or administrator of the estate of the accused.

GO v. LOOYUKO (2007) Respondent Looyuko died on October 29, 2004. It is an established principle that the death of the accused pending final adjudication of the criminal case extinguishes the accused’s criminal liability. If the civil li ability directly arose from and is based solely on the offense committed, then the civil liability is also extinguished.53 In the case at bar, the civil liability for the recovery of the CBC stock certificates covering 41,376 shares of stock or their value does not directly result from or based solely on the crime of estafa but on an agreement or arrangement between   the parties that petitioner Go would endorse in blank said stock certificates and give said certificates to respondent Looyuko in trust for petitioner for said respondent to sell the stocks covered by the certificates. In such a case, the civil liability survives and an action for recovery therefor in a separate civil action can be instituted either against the executor or administrator or the estate of the accused.

ASILO v. PEOPLE (2011) We note, first off, that the death of Angeles and of Mayor Comendador during the pendency of the case extinguished their criminal liabilities. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore."

Death of Mayor Comendador during the pendency of the case could have extinguished the civil liability if the same arose directly from the crime committed. However, in this case, the civil liability is based on another source of obligation, the law on human relations. Article 32(6) of the Civil Code on the deprivation of property without due process of law. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.

PEOPLE v. LIPATA (2016) Gerry Lipata was charged with Murder, before SC can render  judgment Gerry Lipata died. It was also based on quasi-delict because the heirs of victim did not file any civil action based on the quasi-delict. This rule is totally unjust,  for similar cases in the future, we refer for study for revision for resolution of such cases which objective of indemnifying the heirs. This rule of extinguishes ex delicto liability is unfair. However, for similar cases in the future, we refer to the Committee on the Revision of the Rules of Court for study and recommendation to the Court En Banc appropriate amendments to the Rules for a speedy and inexpensive resolution of such similar cases with the objective of indemnifying the private offended party or his heirs in cases where an accused dies after conviction by the trial court but pending appeal. Court declared that our law recognizes that an acquittal based on reasonable doubt of the guilt of the accused does not exempt the accused from civil liability ex delicto which may be proved by preponderance of evidence. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It has given rise to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the criminal offense, when the latter is not proved, civil liability cannot be demanded.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

But for the purpose of indemnifying the complaining party, why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by a preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the criminal law? For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct a serious defect in our law. It will close up an inexhaustible source of injustice – a cause for disillusionment on the part of innumerable persons injured or wronged. In similar manner, the reform in procedure in these cases to be recommended by the Committee on the Revision of the Rules of Court shall aim to provide the aggrieved parties relief, as well as recognition of their right to indemnity. This reform is of course subject to the policy against double recovery.  A final  judgment rendered in a civil action absolving the defendant from civil liability is not a bar to a criminal action against the defendant for the same act or omission subject of the civil action.

(3) In the court where the criminal case is pending (at any time before the prosecution rests).

NOTE: Under the rules, the suspension may be made only upon the petition and not at the instance of the judge alone, and it also says suspension not dismissal of the case. The elements of prejudicial question are: (a) The previously instituted civil action involves an issue similar or intimately related to the issue raised in subsequent criminal action, and (b) The resolution of such issue determines whether or not the criminal action may proceed.

Elements of Prejudicial Questions 1. The previously instituted civil action involves an issue 2.

Exception When the issue in the civil case is classified as a prejudicial question.

 A petition for suspension of the criminal action based upon a pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before prosecution rests.

Suspension by Reason of Prejudicial Question Prejudicial Question An issue involved in a civil action which is similar or intimately related to the issue raised in the criminal action, the resolution of which determines whether or not the criminal actio may proceed.

When the criminal case may suspended to give way to the determination of the civil case: 

When the issue of the civil case involves a prejudicial question.

Where petition for suspension of the criminal action may be filed: (1) In the office of the prosecutor (during PI); or (2) In the court conducting the PI (where pending)

similar or intimately related to the issue raised in the subsequent criminal action; and (CIVIL BE FILED FIRST) The resolution of such issue determines whether or not the criminal action may proceed.

Examples of Instances with Prejudicial Question 

General Rule This shall not be a bar to a criminal action against the defendant for the same act or omission subject of the civil action.

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

For allegedly giving a false testimony in a civil case, which is a criminal offense under Article 182, RPC but the determination of falsity is in the civil case. A civil case for the ownership of a piece of land in a criminal prosecution for squatting.

Instances Without Prejudicial Question Annulment of Marriage (civil case) and Bigamy (criminal case) Salvador married Narcisa in 1967. In 1989, while the first marriage was subsisting, Salvador married Zenaida. On Jan. 19, 1995, an annulment case was filed by Salvador against Narcisa. May 18, 1995, a case for bigamy was filed by Narcisa against Salvador and Zenaida. Subsequently, the marriage between Salvador and Zenaida was annulled. Was the annulment case a prejudicial question that would justify the suspension of the prosecution of bigamy?  No. A prejudicial question has been defined as one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal action would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined.

The outcome of the civil case for annulment of Salvador’s marriage to Narcisa had no bearing upon the determination of his innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a  judicial proceeding. Even if Salvador eventually obtained a declaration that his first marriage was void ab initio, the point is both the first and second marriage were subsisting before the first marriage was annulled (Abunado v. People,  2004). Declaration of Nullity (civil) and Concubinage (criminal) Does a pending action for declaration for nullity of marriage filed by the accused against his wife pose a prejudicial question to the charge of concubinage filed by his wife against him? No. Parties to the marriage should not be permitted to judge for themselves that it was a nullity, for the same must be submitted to judgment of the competent courts and only when the nullity of marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists for all intent and purposes.

Therefore, he who cohabits with a woman not his wife before the judicial declaration of nullity of marriage assumes the risk of being prosecuted for concubinage. The pendency of a civil action for nullity of marriage does not pose a prejudicial question in a criminal case for concubinage. Other examples without prejudicial question: Civil action related to unfair competition Civil action for annulment of sale on ground of fraud and BP 22 case.  

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OMICTIN v. CA (2007) n sum, the main issue is whether or not a prejudicial question exists to warrant the suspension of the criminal proceedings pending the resolution of the intra-corporate controversy that was originally filed with the SEC. A prejudicial question is defined as that which arises in a case, the resolution of which a logical antecedent of the issue is involved therein and the cognizance of which pertains to another tribunal.14 Here, the case which was lodged originally before the SEC and which is now pending before the RTC of Mandaluyong City by virtue of Republic Act No. 8799 involves facts that are intimately related to those upon which the criminal prosecution is based. Logically, under the circumstances, since the alleged offended party is Saag Phils., Inc., the validity of the demand for the delivery of the subject vehicles rests upon the authority of the person making such a demand on the company’s behalf. Private respondent is challenging petitioner’s authority to act for Saag Phils., Inc. in the corporate case pending before the RTC of Mandaluyong, Branch 214. Taken in this light, if the supposed authority of petitioner is found to be defective, it is as if no demand was ever made, hence, the prosecution for estafa cannot prosper. Moreover, the mere failure to return the thing received for safekeeping or on commission, or for administration, or under any other obligation involving the duty to deliver or to return the same or deliver the value thereof to the owner could only give rise to a civil action and does not constitute the crime of estafa.

Consing v. People: A prejudicial question does not exist if the civil action is an independent civil action, there is no prejudicial question for it can proceed independently from the criminal action.

This is because the crime is committed by misappropriating or converting money or goods received by the offender under a lawful transaction.

Caterpillar v. Samson

Commentary:  Here we have an intra-corporate dispute to

An independent civil action does not pose as a prejudicial question. If it is an independent civil action, it does not have to be suspended. The only way to suspend such case is to have a prejudicial question.

declare nullity of appointment. In a case in another tribunal which has an issue intimately. It is possible to have an action that does not arise out of the offense to be a prejudicial question as long as the requisites under Section 7 are met.

MAGESTRADO v. PEOPLE (2007) Criminal complaint for perjury but there were two civil actions of collection of sum of money. There is no prejudicial question. The issues were recovery of sum of money and cancellation of mortgage, delivery of title and damages. It is evident that the civil cases and the criminal case can proceed independently of each other. Regardless of the outcome of the two civil cases, it will not establish the innocence or guilt of the petitioner in the criminal case for perjury. The purchase by petitioner of the land or his execution of a real estate mortgage will have no bearing whatsoever on whether petitioner knowingly and fraudulently executed a false affidavit of loss of TCT No. N-173163.

SPOUSES JOSE v. SPOUSES SUAREZ (2008) DREAMWORK v. JANIOLA (2009) Criminal case of 2005 on BP 22; Civil Case for rescission of alleged construction agreement was o 2006. Is rescission a prejudicial question? No. The civil action must precede the

filing of the criminal action for prejudicial question to exist. In the case at bar, the criminal case was filed ahead on 2005 on the civil case was on 2006. In any event, even if the civil case here was instituted prior to the criminal action, there is, still, no prejudicial question to speak of that would justify the suspension of the proceedings in the criminal case. Verily, even if the trial court in the civil case declares that the construction agreement between the parties is void voi d for lack of

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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consideration, this would not affect the prosecution of private respondent in the criminal case. The fact of the matter is that private respondent indeed issued checks which were subsequently dishonored for insufficient funds. It is this fact that is subject of prosecution under BP 22. Therefore, it is clear that the second element required for the existence of a prejudicial question, that the resolution of the issue in the civil action would determine whether the criminal action may proceed, is absent in the instant case. Thus, no prejudicial question exists and the rules on it are inapplicable to the case before us.

DE ZUZUARREGUI v. VILLAROZA (2010) A perusal of the allegations in the petition to annul judgment shows that CA-G.R. SP No. 87222 pending before the Court of Appeals is principally for the determination of the validity of the compromise agreement which did not include Peter, Catherine, and Fannie as heirs of Bella. Peter, Catherine, and Fannie presented evidence to prove that they are also biological children of Bella and Alejandro. On the other hand, Criminal Case Nos. 343812 to 343814 before the MeTC involve the determination of whether petitioner committed falsification of public documents in executing pleadings containing untruthful statements that she and Rosemary were the only legal heirs of Bella. It is evident that the result of the civil case will determine the innocence or guilt of the petitioner in the criminal cases for falsification of public documents. The criminal cases arose out of the claim of Peter, Catherine, and Fannie that they are also the legal heirs of Bella. If it is finally adjudged in the civil case that they are not biological children of the late Bella and consequently not entitled to a share in her estate as heirs, there is no more basis to proceed with the criminal cases against petitioner who could not have committed falsification in her pleadings filed before the RTC of Pasig City, the truth of her statements regarding the filiation of Peter, Catherine and Fannie having been judicially settled.

Commentary:  If you are faced with a question, and you are given a set of facts and you are asked if there is a PQ. Do not answer by give an answer by giving a summary of the facts. All you have to do is categorically determine.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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RULE 112 PRELIMINARY INVESTIGATION Preliminary Investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. Except as provided in Section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine.

Preliminary Investigation, Definition It is an inquiry  or  proceeding  to determine whether there is sufficient ground to engender a well-founded belief that: 1. A crime has been committed, and 2. The respondent is guilty thereof, and should be held for trial. (Probable cause)

When PI is Required to be Conducted 1. Before the filing of information in court; 2. For an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine.

Nature of a Preliminary Investigation A component part of due process in criminal justice, preliminary investigation is statutory and substantive right accorded to the accused before trial. To deny a claim to a preliminary investigation would be to deprive a person of the full measure of the right to due process. It is not a constitutional right but is merely a right conferred by the statute. The absence of a PI does not impair the validity of the information or render it defective. 

Preliminary Investigation is Not Part of Trial A full and exhaustive presentation of the parties in PI is not required, but only such as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. By reason of abbreviated nature of preliminary investigations, a dismissal of charges as a result thereof is not equivale to a judicial pronouncement of acquittal.

Preliminary Investigation is an Executive Function It is an executive function exclusively of the prosecutor. An investigating prosecutor is under no obligation to file a criminal action where he is not convinced that he has the quantum of evidence at hand to support averments. Prosecuting officers have equally the duty not to prosecute when after investigation or reinvestigation they are convinced that the evidence adduced was not sufficient to establish a  prima facie case. Thus, the determination of the persons to be prosecuted rests with prosecutor who has discretion.

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Rights of Respondent Under Preliminary Investigation The following includes the rights of a person under PI: 1. The right to refuse to be made witness; 2. The right not to have any prejudice whatsoever imputed to them by such refusal; 3. The right to testify on their own behalf, subject to cross-examination by the prosecution; and 4. While testifying, the right to refuse to answer a specific answer a specific question that tends to incriminate them for some crime other than that for which they are being prosecuted (Ladiana v. People ).

Presence of Counsel, Not Required There is nothing  in the Rules which renders invalid a PI held without the counsel of accused. Not being part of the due process clause but a right merely created by law, preliminary investigation if within statutory limitations cannot be voided. PI is not the venue for the full exercise of the rights of the parties. This is why PI is not considered part of trial but merely preparatory thereto and that the records herein shall not form part of the records in court. Parties may submit affidavits but no right to examine witnesses. In fact, there are ex-parte PIs.

Lack of Preliminary Investigation,  Effect  The absence of a preliminary investigation does not impair  the  the validity of the information or otherwise render it defective. Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information. The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct PI. Just remand the proceedings to the prosecutor to conduct of PI. 

When must objection to lack of PI be raised?  It must be made before entry of plea and the court instead of dismissing the information must remand the case for preliminary investigation. The refusal of the court to remand the case for PI can be raised via certiorari and prohibition to prevent the trial.

Commentary:  You can use the respondent here as the one named in the complaint. It is the PI will cause the filing of the complaint in court and if there is probable cause will lead to filing of information in court. Note that the penalty prescribed by law of 4 years, 2 months and 1 day or more, PI is required.

ERNESTO DE CHAVEZ v. OMBUDSMAN (2007) Admin complaint of RA 6713; criminal complaint under RA 3019. The resolution categorically stated that they are liable for the criminal acts complained of; that id did not even discuss the matter of probable. Did the OMB resolution convicted them?  OMB can conduct PI for the purpose for determining of PC. The word liable  is synonym to words susceptible, prone and exposed. Nowhere in the resolution that they were found guilty. The word “liable” employed OMB resolution only refers to the probability of guilt. It is not a declaration of guilt as what De Chavez are arguing.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

ALICIA RICAFORTE v. LEON JURADO (2007) Assistant Prosecutor dismissed the complaint for insufficiency of evidence and thus no probable cause for BP 22 and Estafa. There was probable cause. 1. Has a crime been committed? 2. Is the respondent probably guilty thereof? Both questions were answered. The intricate elements will just have to be dealt with in the trial. For PI only these two things, if these are clear then PI is fine.

CATTERPILLAR v. SAMSON Is there probable cause? Look at the two requisites, here there is no probable cause. This case is for unfair competition under the Revised Penal Code. There is no probable cause. Unfair competition is simply passing off as goods of other is passed as one’s own. Samson here definitely copy even the logo. So, that is why such case is filed. Unfortunately for Caterpillar, Samson was able to register the trademark first. The SC said the Samson registered such trademark, and there is no showing that the trademark was illegal obtained or fraudulently obtained.

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Authority over Sandiganbayan Cases Do city ad provincial prosecutors (DOJ) have the authority to conduct PI of crimes committed within their jurisdiction when such offenses are cognizable by the Sandiganbayan? Yes. Section 2 and 4 of Rule 1 12 lists the officers authorized to conduct PI which shall include all crimes cognizable by the proper court within their their territorial jurisdiction. However, under Section 4, in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutors shall after their investigation, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action.

In addition, the prosecutor cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an Information with the Sandiganbayan, without being deputized by, and without prior written authority of the Ombudsman or his deputy. NOTE: There is no need for the Ombudsman to deputize the DOJ before it can validly conduct PI over offenses committed by public officials in relation to office which are cognizable by ordinary courts. Both OMB and DOJ have the concurrent  jurisdiction to conduct PI on charges filed (Honasan II v. Panel of Prosecutors, DOJ, 2004).

Judge Cannot Designate Particular Prosecutor

Samson may be considered as a prior user  and CAT as a subsequent user, there is no PC for to hold Samson for trial on that criminal case of Unfair Co mpetition.

In remanding the complaint or information to the provincial prosecutor, a judge cannot name or designate a particular prosecutor to conduct the PI of the case for PI is an executive function. A judge cannot directly order an assistant prosecutor, to conduct PI (People v. Navarro, 1997).

There was no PC as found by the SOJ, who has the last say in the determination of the PC.

Other Officers Authorized by Law (a) Authority of the Ombudsman

The following may conduct preliminary investigations: (a) Provincial or City Prosecutor and their assistants; (b) National and Regional State Prosecutors; (c) Other officers as may be authorized by law. Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdiction (As amended by AM No 05-08-26-SC, August 30, 2005).

Authority to Conduct Preliminary Investigation Who may conduct Preliminary Investigation? (a) Provincial and City Prosecutors and theirs assistants; (b) National and Regional State prosecutors; and (c) Other officers as may be authorized by law.

Extent of their authority to conduct PI It shall extend to all crimes cognizable by the proper court in their respective territorial jurisdictions.

The Ombudsman is clothed with authority to conduct PI and to prosecute all criminal cases involving public officers and employees, not only within jurisdiction of the SB but also those of regular courts. This is founded in Section 15 and 11 of RA 6770 which vests the Ombudsman with the power to investigate and prosecute any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient (Uy v. Sandiganbayan – PLENARY AND UNQUALIFIED).

(b) Authority of the Special Prosecutor It is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon the authority of Ombudsman. Its power to conduct PI and prosecute is limited to criminal cases within the jurisdiction of SB.

(c) Commission on Elections COMELEC has the exclusive authority to conduct PI and prosecute all election offenses under BP 881 but this is qualified however.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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SANTIAGO TURINGAN v. JUDGE GARFIN (2007) Moved for quash that state prosecutor Tolentino lacked the authority to sign it. Did state prosecutor had authority to file the information of violation of RA 8282. For there was no directive citing him as private prosecutor. U Under SSS Law, there are criminal acts, like when the employer collects and does not remit. Apparently, who is authorized who are authorized to conduct PI under SSS Law? The SOJ or the Provincial or City Prosecutor must have a written authority to authorize a particular prosecutor to investigate. Here the information was signed by Prosecutor Tolentino, according to him that he was clothed with authority to investigate and file for he was designated for SSS cases.

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SHARON CASTRO v. JUDGE DELORIA (2009) There was a 1999 ruling that OMB can only prosecute SB cases but on 2001 it reversed itself saying that the OMB can now prosecute cases. It is settled, therefore, that the March 20, 2001 Resolution in Uy, that the Ombudsman has prosecutorial powers in cases cognizable by the RTC, extends even to criminal information filed or pending at the time when its August 9, 1999 Decision was the operative ruling on the issue. It is settled, therefore, that the March 20, 2001 Resolution in Uy, that the Ombudsman has prosecutorial powers in cases cognizable by the RTC, extends even to criminal information filed or pending at the time when its August 9, 1999 Decision was the operative ruling on the issue.

RODOLFO MAGO v. JUDGE FERMO (2009) SC said here that he does not, for it is enough to cite Regional Order for it was not the authority contemplated for it was just a circular or memorandum. Without such authority, he cannot file. Here it was only Tolentino who investigated and who signed, SC said that it is unauthorized. An unauthorized information has a jurisdictional defect.

MARINA SCHROEDER v. SALDEVAR (2007) There is a direct bribery  which  which is under the Sandiganbayan Law. It was proper for the Ombudsman to conduct preliminary investigation. Here, the OMB power to investigate and to prosecute is plenary and unqualified. It means to pertains to any act or omission of the public officer.

PAYAKAN TILENDO v. OMBUDSMAN (2007) Tilendo was charged with RA 3019. There was an NBI fact finding team. By referring the complaint to the NBI, the OMB did not delegate the conduct of PI. The fact finding investigation which was preparatory before the PI. The options available are five. It is the OMB who conduct investigation and not the NBI, it only conducts fact-finding.

Rule II, Section 3 of AO 7 Preliminary investigation; who may conduct. Preliminary Investigation may be conducted by any of the following: 1. Ombudsman Investigators; 2. Special Prosecuting Officers; 3. Deputized Prosecutors; 4. Investigating Officials authorized by law to conduct preliminary investigations, or 5. Lawyers in the government service, so designated by the Ombudsman. We already know that the OMB is the investigating body of the public officers, but we also know the authority of the OMB to investigate crimes committed by public officers which is plenary and unqualified. If the prosecutor does not find a probable cause he has to get the authority of the OMB for authority to dismiss or if there is PC he must get the prior authority of the OMB in order to file the case in such.

Prior to the amendment on October 3, 2005 of Rules 112 and 114 of the Rules of Court via A.M. No. 05-8-26-SC, Re: Amendment of Rules 112 and 114 of the Revised Rules on Criminal Procedure by Removing the Conduct of Preliminary Investigation from Judges of the First Level Courts, judges of municipal trial courts were empowered to conduct preliminary investigations in which they exercised discretion in determining whether there was probable cause to hale the respondent into court. Such being the case, they could not delegate the discretion to another. An officer to whom a discretion is entrusted cannot delegate it to another, the presumption being that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and unless the power to substitute another in his place has been given to him, he cannot delegate his duties to another. In those cases in which the proper execution of the office requires on the part of the officer, the exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and, unless power to substitute another in his place has been given to him, he cannot delegate his duties to another. Then, as now, a personal examination of the complainant in a criminal case and his witness/es was required. Thus, under Section 4, Rule 112 of the Revised Rules of Court before its amendment, the investigating fiscal was required to certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses . . . By respondents delegation of the examination of the sheriffcomplainant in the grave threats case to the stenographer, and worse, by allowing the witnesses to read/study the [written] question[s] to be propounded to them and to write their answers [thereto] upon respondents justification that the scheme was for the convenience of the stenographers, respondent betrayed her lack of knowledge of procedure, thereby contributing to the erosion of public confidence in the  judicial system.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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SPOUSES CHUA v. ANG (2009) Contended that HLURB shout take jurisdiction of the case. Is the dismissal is correct? No. Even though HLURB have JD under PD 957. Here in the decree there are two remedies between an administrative or criminal with differing consequences. Spouses Chua pursued criminal case. The special law has to authorize officer to conduct, if there is none, then those how are empowered under Rule 112, Section 2. There are cases under PD 957, administrative case be filed to HLURB where to have quasi-judicial powers and authority to impose fines. In criminal cases, the investigation be made by those under Rule 112, Section 2.

BP 881 This is another kind of special law which gives the COMELEC the power to conduct PI for crimes committed under the OEC and the question here, does the COMELEC has exclusive authority to conduct.

Yes, but this is qualified   but the prosecutors are given automatic authority to them to investigate crimes committed under BP 881. Such authority may be revoked anytime, whenever necessary. Continuing authority  given to prosecutors until such authority.

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 Within ten (10) days from the receipt recei pt of the subpoena  with the complaint and supporting affidavits and documents, the respondent shall submit his counteraffidavit and that of his witnesses and other supporting documents relied upon for his defense. The counteraffidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions  which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from the submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.

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The Preliminary Investigation shall be conducted in the following manner: The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.  Within ten (10) days after the filing of the complaint, complaint, the the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing photographing at the expense of the requesting party.

 Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Procedure as to the Complainant 1. He or she shall file the complaint to the office of the prosecutor.

2. The complaint shall: a. State the address of the respondent b. Be accompanied by: i. Affidavits (subscribed, sworn to and certified) of the complainant and his witnesses; and ii. Other supporting documents to establish probable cause. 3. Number of copes for the complaint: a. As many as there are respondents, plus b. Two (2) copies for the official file.

Procedure as to the Investigating Officer 1. He/she has ten (10) days, after the filing of the complaint either to: a. Dismiss it – if he finds no ground to continue with the investigation, or b. Issue a subpoena to the respondent , attaching to the subpoena: i. A copy of the complaint, and ii. Its supporting affidavits and documents

2. He/she shall resolve the complaint based on the evidence presented by the complainant, if the r espondent: a. Cannot be subpoenaed, or b. Is subpoenaed, but does not submit counteraffidavits within the ten (10) day period.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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 set a hearing if there are facts and issues to 3. He/she may  set be clarified from a party or a witness. a. The parties (complainant and respondent): i. Can be present at the hearing, ii. Have no right to examine or crossexamine, but iii. May submit to the investigating officer questions which may be asked to the party or witness concerned.

b. The hearing shall be: i. Held within ten (10) days: 1. From the submission of the counter-affidavits and other documents, or 2. From the expiration of the period for their submission. ii. Terminated within five (5) days.

4. Within ten (10) days after the investigation, he/she shall determine whether or not there is sufficient ground to hold the respondent for trial.

Investigation refers to the investigation of documents. He cannot dismiss it on his own he must get the consent of the City Prosecutor or the Ombudsman.

Procedure as to the Respondent 1. With respect to the documentary evidence submitted by the complainant, he/she shall have the right to: a. Examine the evidence which he may not have been furnished; b. To copy them at his expense; and c. To require the complainant to specify those which he intends to present against the respondent, if the evidence is voluminous.

2. With respect to object evidence a. They need not be furnished to the respondent. b. They shall be made available for examination, copying or photographing at his/her expense.

3. Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, he/she shall submit: a. Counter-affidavits (subscribed, sworn and certified) of himself and that of his witnesses; b. Other supporting documents relied upon for his/her defense.

4. He/she shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

In criminal cases, upon receipt of the complaint the respondent must file a counter-affidavit , so that is the procedure under Section 3.

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Failure to Receive Subpoena, Effects Section 3(d) of Rule 112 provides that if the respondent cannot be subpoenaed the investigating officer shall base his resolution on the evidence presented by the complainant. The rules does not require as condition sine qua non to validity of the proceedings in the PI as long as efforts were made.

SOCRATES v. SANDIGANBAYAN In asserting that there was a violation of his right to a speedy trial by reason of the unreasonable delay of six (6) years between the conduct of the preliminary investigation and the filing of the informations, petitioner invokes the doctrine laid down in the leading case of Tatad vs. Sandiganbayan, et al. In said case, all the affidavits and counter-affidavits had already been filed with the Tanodbayan for final disposition as of October 25, 1982 but it was only on June 12, 1985, or three (3) years thereafter, that the informations accusing Tatad of a violation of Republic Act No. 3019 were filed before the Sandiganbayan. The Court held there that an inordinate delay of three (3) years in the conduct and termination of the preliminary investigation is violative of the constitutional rights of the accused to due process and speedy disposition of his case, by reason of which the informations filed against the accused therein were ordered dismissed. It must be emphasized, however, that in the Tatad case, no explanation or ratiocination was advanced by the prosecution therein as to the cause of the delay. In the present case, as distinguished from the factual milieu obtaining in Tatad, respondent court found that the six-year delay in the termination of the preliminary investigation was caused by petitioners own acts. Even though the prosecutors take some time the respondent must object to the delay,   you cannot right away file to the violation of speedy disposition, make known your issue. More or less the minimum is 45 days.

PEOPLE v. EMILIANO ANONAS (2007) SPO4 was charged for illegal possession of drugs and firearms. The court ordered a reinvestigation, and failed to inform the succeeding prosecutor the ongoing prosecution.

Issue: Whether or not the delay of 4 years is a violation. Yes. It invoked Section 3(f) of Rule 112. It was found out that it took more than 4 years before the prosecution made a decision to hold a trial.

BENJAMIN MARTINEZ v. COURT OF APPEALS (2007) Issue: Was there compliance with the requirements set forth in Section 3, Rule 112? YES. Initially defective for complaint was not accompanied by the required affidavits and document because of this, MCTC had the option of either: 1) Order SPO1 Sulatre to comply with the rule 2) Dismiss the complaint

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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But what it did was that it opted not to act on the complaint until SPO1 Sulatre was able to submit the required affidavits and documents – and he indeed submitted such. Which prompted MCTC to issue a subpoena to Martinez attached the submitted affidavits and documents by SPO1 Sulatre.

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Indubitably, there was no preliminary investigation conducted as required by the rules since no subpoena was issued to herein complainants for them to file counter-affidavits.

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In addition, Moreover, Martinez submitted his counter-affidavit without any protest. Neither did he assail the validity of the criminal complaint or the tardy submission by SPO1 Sulatre of the medical certificate, the affidavit of Dean and the affidavit of arrest of SPO1 Sulatre. Aside from this, Martinez was arraigned in the RTC, assisted by counsel, and entered a plea of not guilty. Thus, Sulatre complied with Section 3(a) and (b) of Rule 112.

VICENTE LADLAD v. VELASCO (2007) Affidavit was given to the Media and not the respondents. Rule 112, Section 3(a) was not followed. The affidavits shall be subscribed and sworn to before proper officers. The prosecutors treated unsubscribed letters as complaints. They accepted the affidavits attached to the letters even though some of them were notarized. During the investigation respondent prosecutors allowed the CIDG to present a masked Fuentes who subscribed to an affidavit before prosecutor Velasco. Velasco proceeded to distribute the copies of Fuentes’ affidavit to the accused or the counsels out to the members of the media. There was partiality on the part of the prosecutors. 

The prosecutors did not follow by Section 3, Rule 112 and did not even copies to the complainants. A preliminary investigation is the crucial sieve in the criminal  justice system which spells for an individual the difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not "a mere formal or technical right" but a "substantive" one, forming part of due process in criminal  justice. This especially holds true here where the offense charged is punishable by reclusion perpetua and may be nonbailable for those accused as principals.

GUTIERREZ v. HERNANDEZ (2007) They were charged with complaints of gross ignorance of the law against Hernandez issuing arrest warrants without undergoing of the probable cause determining it. Whether or not issuing warrant of arrest was not in compliance of Section 3 of Rule 112.

The inordinate haste attending the issuance of the warrants of arrest against complainants, Ernesto Cruz, and Gus Abelgas belies the conduct of preliminary examination and personal determination of probable cause, in contravention of the provisions of the Rules of Court, and constituting a denial of due process. NOTE: This is why the power of PI is removed from the judges, the one who issues warrant is the judge where the information is filed, definitely the judge did not follow proper procedure,

SORIANO v. PEOPLE (2010) Letter with five affidavits, it was argued that it failed to comply with the mandatory requirement of oath and subscription under Section 3(a), Rule 112. Did it comply?

Yes. The Court is not unaware of the practice of incorporating all allegations in one document denominated as complaintaffidavit. It does not pronounce strict adherence to only one approach, however, for there are cases where the extent of one’s personal knowledge may not cover the entire gamut of details material to the alleged offense. The private offended party or relative of the deceased may not even have witnessed the fatality, in which case the peace officer or law enforcer has to rely chiefly on affidavits of witnesses. A complaint for purposes of preliminary investigation by the fiscal need not be filed by the offended party. The rule has been that, unless the offense subject thereof is one that cannot be prosecuted de oficio, the same may be filed, for preliminary investigation purposes, by any competent person. A close scrutiny of the letters transmitted by the BSP to the DOJ, that these were not intended to be the complaint, as envisioned under the Rules. They did not contain averments of personal knowledge of the events and transactions constitutive of any offense. The letters merely transmitted for preliminary investigation the affidavits of people who had personal knowledge of the acts of petitioner. We ruled that these affidavits, not the letters transmitting them, initiated the preliminary investigation. Since these affidavits were subscribed under oath by the witnesses who executed them before a notary public, then there was substantial compliance with Section 3(a), Rule 112 of the Rules of Court.

ARTILLERO v. CASIMIRO (2012) It is apparent from the facts on record that the complainants were never issued any subpoena to accord them the opportunity to file their counter-affidavits to adduce evidence controverting those alleged in the criminal complaints against them before the respondent judge issued the warrants of arrest.

Artillero argues that he should be given a copy of Aguillon’s counter-affidavit. Yes. It is required. However, Provincial Prosecutor Dusaban correctly claims that it is discretionary on his part to require or allow the filing or submission of reply-affidavits.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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CALLO-CLARIDAD v. ESTEBAN (2013) The affidavits were unsworn. The statements subscribed and sworn to before the officers of the Philippine National Police (PNP) having the authority to administer oaths upon matters connected with the performance of their official duties undeniably lacked the requisite certifications to the effect that such administering officers had personally examined the affiants, and that such administering officers were satisfied that the affiants had voluntarily executed and understood their affidavits. It can be inferred that the rationale for requiring the affidavits of witnesses to be sworn to before a competent officer so as to ensure that the affidavits supporting the factual allegations in the Complaint have been sworn before a competent officer and that the affiant has signed the same in the former’s presence declaring on oath the truth of the statement made considering that this becomes part of the bases in finding probable guilt against the respondent. The lack of the requisite certifications from the affidavits of most of the other witnesses was in violation of Section 3, Rule 112 of the Rules of Court, which pertinently provides. In the case at bar, a perusal of the statements/affidavits accompanying the complaint shows that out of the total of 16 statements/affidavits corresponding to the respective witnesses, only nine (9) thereof were sworn to before a competent officer. The effect of the unsworn affidavit is that

they are inadmissible, they are stricken off but it does not make the preliminary investigation void. ARROYO v. DOJ (2013) GMA requested the Joint Committee to require Senator Pimentel to furnish her with documents referred to. However, Senator Pimentel manifested that he was adopting all the affidavits attached to the Fact-Finding Team’s Initial Report. Therefore, when GMA was furnished with the documents attached to the Initial Report, she was already granted the right to examine as guaranteed by the Comelec Rules of Procedure and the Rules on Criminal Procedure. Neither was GMA’s right violated when her motion for extension of time within which to submit her counter-affidavit and countervailing evidence was consequently denied. The Rules use the term "shall" in requiring the respondent to submit counter-affidavit and other countervailing evidence within ten (10) days from receipt of the subpoena. It is settled that the use of the word "shall" which is a word of command, underscores the mandatory character of the rule. In this case, GMA claimed that she could not submit her counter affidavit within the prescribed period because she needed to examine documents mentioned in Senator Pimentel’s complaint-affidavit. It appeared, however, that said documents were not submitted to the Joint Committee and the only supporting documents available were those attached to the Initial Report of the Fact-Finding Team. Admittedly, GMA was furnished those documents. Thus, at the time she asked for the

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extension of time within which to file her counter-affidavit, she very well knew that the documents she was asking were not in the record of the case. Obviously, she was not furnished those documents because they were not submitted to the Joint Committee. Logically, she has no right to examine said documents. We cannot, therefore, fault the Joint Committee in consequently denying her motion for extension to file counteraffidavit as there was no compelling justification for the nonobservance of the period she was earlier required to follow. In other words, the time given to the respondent to file her counter-affidavit IS TEN DAYS – THIS IS A MANDATORY. This exception, in the 2008 Revised Manual for Prosecutors, investigating prosecutors allow or grant motions or requests for extension of time to submit counter-affidavits when the interest of justice demands that respondent be given reasonable time or sufficient opportunity to engage the services of counsel; examine voluminous records submitted in support of the complaint or undertake research on novel, complicated or technical questions or issues of law and facts of the case. Not in the case of GMA, she access to lawyers, this does not apply to her. What she was asking for was not there in the records submitted there in support of the complaint.

JINGGOY ESTRADA v. BERSAMIN (2015) OMB served upon Estrada a copy of the complaint praying for the conduct of criminal proceedings for Plunder. Sen. Estrada filed his counter-affidavit. He requested the counter-affidavits copies of his co-respondents.

No Right to Ask for Copies of Counter-affidavits Of the Co-Respondents There is no law or rule which requires the Ombudsman to furnish a respondent with copies of the counter-affidavits of his co-respondents. Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a respondent "shall have access to the evidence on record," this provision should be construed in relation to Section 4(a) and (b) of the same Rule, as well as to the Rules of Criminal Procedure. First, Section 4(a) states that "the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaint." The "supporting witnesses" are the witnesses of the complainant, and do not refer to the co-respondents. Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a copy of the affidavits and all other supporting documents, directing the respondent" to submit his counter-affidavit. The affidavits referred to in Section 4(b) are the affidavits mentioned in Section 4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant and his supporting witnesses. The provision in the immediately succeeding Section 4(c) of the same Rule II that a respondent shall have " access to the

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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evidence on record" does not stand alone, but should be read in relation to the provisions of Section 4(a and b) of the same Rule II requiring the investigating officer to furnish the respondent with the "affidavits and other supporting documents" submitted by "the complainant or supporting witnesses." Thus, a respondent’s "access to evidence on record" in Section 4(c), Rule II of the Ombudsman’s Rules of Procedure refers to the affidavits and supporting documents of "the complainant or supporting witnesses" in Section 4(a) of the same Rule II.

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Under the provision, the conduct of a clarificatory hearing is not indispensable; rather, it is optional on the part of the investigating prosecutor as evidenced by the use of the term "may." That hearing fulfills only the p urpose of aiding the investigating prosecutor in determining the existence of probable cause for the filing of a criminal complaint before the courts. The clarificatory hearing does not accord validity to the preliminary investigation by the prosecutor, nor does its absence render the proceedings void.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense." A respondent’s right to examine refers only to "the evidence submitted by the complainant."

Necessarily, the failure of Ong and Santiago to appear at the scheduled clarificatory hearing might have caused some slight inconvenience to the investigating prosecutor, but it did not result in the exclusion of the affidavits or counter-affidavits already submitted by the parties.

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the Ombudsman’s Rules of Procedure, there is no requirement whatsoever that the affidavits executed by the co-respondents should be furnished to a respondent.

In fact, under the rules, an investigating prosecutor may resolve a complaint based only on the evidence presented by the complainant if the respondent cannot be subpoenaed or, if subpoenaed, does not submit a counter-affidavit within the prescribed period.

No Right to Cross-Examine

The panel's act of resolving the complaint against petitioners and Ong primarily on the basis of Doble's evidence, and in spite of the timely submission of the counter-affidavits, was clearly committed with grave abuse of discretion.

This Court has unequivocally ruled in Paderanga that "Section 3, Rule 112 of the Revised Rules of Criminal Procedure expressly provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine."

NOTE: If the affidavits complied with the rules, they cannot be excluded, a clarificatory hearing is not mandatory, the failure to appear does not render those affidavits nonadmissible. Clearly, the panel did not follow rules, they did not consider the side of the respondent.

Moreover, Section 4 (a, b and c) of Rule II of the Ombudsman’s Rule of Procedure, read together, only require the investigating officer to furnish the respondent with copies of the affidavits of the complainant and his supporting witnesses.1âwphi1 There is no law or rule requiring the investigating officer to furnish the respondent with copies of the affidavits of his co-respondents.

FELIX v. CA (2016) As aptly pointed out by the RTC, there was no justification for the rejection of the counter-affidavits upon the failure to subscribe and swear to them before the panel. Under Section 3(a) and (c), Rule 112 of the Rules of Court, counter-affidavits may be subscribed and sworn to before any prosecutor or government official authorized to administer oaths or, in their absence or unavailability, before any notary public. Notably, the counter-affidavits of Ong and Santiago, the recantation of Santos, and the affidavit of Bishop Bacani were all subscribed and sworn to before government prosecutors.

Also, the failure of Ong and Santiago to appear before the panel did not justify the exclusion of their duly submitted counter-affidavits and annexes.

COMMENTARY: So we have the investigating prosecutor and did PI and found PC to hold respondent for trial, what are the respondents to take? He has prepare the resolution and information. Resolution  means that the investigation prosecutor found probable cause and recommends information, if it was Information he cannot sign unless he is the one authorized. Next, he shall certify under oath the information that he or as shown of the record, an authorized officer has personally examined the complainant and his witnesses (either in the swearing or in the clarificatory hearing), and there is probable cause, he should certify four things or statements. The information and resolution are already ready, he shall forward the record to the case within 5 days to the superior depending either City/Provincial Prosecutor or Ombudsman. What if no probable cause, he will recommend dismissal the resolution now is a Recommendation to Dismiss  and forward to the superior, anything he decided will be forwarded to the superior. Superior now has the recommendation he has to act to approve or not and immediately inform the parties (review).

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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If the recommendation for dismissal, and it is disapproved by the superior, then the superior may by himself may file the case against the respondent, or he can direct one of his inferiors to do so, and there is no need to conduct another PI. Now, Secretary of Justice will reach, if the party goes up, if it is about probable cause it is the accused, if dismissal, the private complainant. Upon petition by a proper party. What the SOJ may do, he may dir ect the prosecution concerned to file or to dismiss or moved to dismiss.

RESOLUTION OF INVESTIGATING PROSECUTOR A. If the investigating prosecutor finds cause to hold respondent for trial: 1. He shall prepare the resolution and information 2. He shall certify under oath in the information that: a. He, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; There is reasonable ground to believe that a crime has been committed and the accused is probably guilty thereof; The accused was informed of the complaint and of the evidence submitted against him; and The accused was given an opportunity to submit controverting evidence; and

b. If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise he shall recommend the dismissal of the complaint.  Within five f ive (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.  Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is approved by the provincial or city prosecutor or the Ombudsman or his deputy on the ground that a probable exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor to do so without conducting another preliminary investigation. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Offi ce of the Ombudsman.

c. d.

3. He shall forward the record of the case within five (5) days from his resolution, to his superior who may either be the: a. Provincial or city prosecutor, or b. Chief state prosecutor, or c. Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction

B. If the investigation prosecutor finds NO cause to hold respondent for trial: 1. He shall recommend the dismissal of the complaint; 2. He shall forward the record of the case, within give (5) days from his resolution, to his superior who may either be: a. Provincial or city prosecutor, or b. Chief state prosecutor, or c. Ombudsman or his deputy in his cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction.

REVIEW OF THE RESOLUTION OF THE INVESTIGATING PROSECUTOR A. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the: a. Provincial or city prosecutor, or b. Chief state prosecutor, or c. The Ombudsman or his deputy B. Duty of the superior reviewing the resolution: a. He/she shall act on the resolution within

NOTE: The Office of the Prosecutor is not a quasi-judicial body. It does not determine guilt and only conducts inquisitorial P I. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause.

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b.

ten (10) days from receipt thereof, by either: i. Approving it, or ii. Disapproving it He/she shall immediately inform the parties of such action.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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APPROVAL OR DISAPPROVAL OF RECOMMENDATION MADE BY INVESTIGATING PROSECUTOR A. If the recommendation for dismissal is disapproved by the superior on the ground that probable cause exists: 1. The superior may, by himself, file in the information 2.

against the respondent or  direct   direct another assistant prosecutor or state prosecutor to do so, and There is no need for conducting another preliminary investigation.

B. The Secretary of Justice may reverse or modify the resolution of the superior of the investigating prosecutor: 1. Upon petition by a proper party under such rules as 2.

the DOJ may prescribe, or Motu proprio

C. What the Secretary of Justice may do when he reverses or modifies said resolution – he may direct the prosecutor concerned either to: 1. File  the corresponding information without 2.

conducting another preliminary investigation, or Dismiss or move for dismissal of the complaint or information with notice to the parties.

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Authority to Appeal Dismissal In cases where a DOJ prosecutor has been deputized by the COMELEC to prosecute an election offense, who has authority to decide whether or not the appeal from the order of dismissal issued by a court, the COMELEC or its designated prosecutor? COMELEC. Prosecutors designated by the COMELEC act as its deputies who derive authority from it. It is beyond the power of the prosecutor to oppose the appeal of COMELEC. He should have discussed the matter with COMELEC and awaited its instruction (COMELEC v. Silva, 286 SCRA 777, 1988).

3. Review of Resolution Nature of Prosecution Office The Office of the Prosecutor is not a quasi-judicial agency whose resolutions are subject to review under Rule 43. The conduct of preliminary investigation is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilt thereof.

Supervision and Control Over Prosecutors The Secretary of Justice has the supervision and control over the Office of the Chief Prosecutor as well as the Provincial and City Prosecution Offices. The actions of prosecutors are not unlimited, they are subject to review  by  by the SOJ who may affirm, nullify, reverse, or modify their actions or opinions.

1. Resolution Sufficiency of Evidence for Conviction In holding there is probable cause to charge for respondent for a crime, does the prosecutor also make a finding that he has sufficient evidence to prove guilt beyond reasonable doubt? No. A prosecutor does not decide whether there is evidence beyond reasonable doubt, he merely determines whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the accused is probably guilty thereof and should be held for trial. A finding of probable cause therefore does not require an inquiry as to whether there is sufficient evidence to secure a conviction (Rizon v. Desierto).

Absence of Certification Is an information without certification by the prosecutor that he conducted a preliminary investigation valid? Yes.  Notwithstanding the absence in the information of a certification as to the holding of a preliminary investigation, the information is nonetheless considered valid for the reason that such certification is not an essential part of the information itself and its absence cannot vitiate it as such ( Alvios v. Sandiganbayan, 220 SCRA 55).

2. Authority to Dismiss Case Pending in Court May a judge dismiss an information without the consent of the provincial or city or chief state prosecutor? Yes.  It has no application in a case here the information is already filed before the proper court. In fact, the epigraph of Rule 112 of Duty of ). investigating fiscal (Manlavi v. Gacott ).

Consequently, the Secretary may direct them to file either a motion to dismiss the case or an information against the accused. In short, the SOJ is the ultimate authority  who  who decides which of conflicting theories of complainants and respondents should be believed (Community Bank v. Talavera ).

Review of the Ombudsman Resolution What is the proper procedure for seeking a review of the resolution of the Office of the Ombudsman finding the existence or non-existence of  probable cause?  Supreme Court.   Where the finding of the OMB as to the existence or non-existence of probable cause is tainted with grave abuse of discretion amount to lack or excess of  jurisdiction, while there is no appeal, the aggrieved p arty may file with the SC a petition for certiorari under Rule 65.

Remedy in Cases of Dismissal by the DOJ Secretary If his motion for reconsideration is denied by the SOJ, since there is no more appeal or other remedy available in the ordinary course of law, the procedure to file a petition for certiorari with the CA on the ground of grave abuse of discretion under Rule 65 (Filadams v. CA,  426 SCRA 460).

Discretion of the Courts to Dismiss Once an information is field in court, any disposition of the same or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence, and discretion of the trial court. A motion to dismiss the case filed by the public prosecutor should be addressed to the court who has the option to grant or deny the same.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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In resolving the motion, the court should not rely solely and merely on the findings of the public prosecutor or the SOJ that no crime was committed or that the evidence in the possession of the public prosecutor is insufficient to support a judgment of conviction of the accused. The trial court should make an independent assessment of the merits of the case based on affidavits and counter-affidavits, documents or evidence appended to the Information; or any evidence already adduced before the court by the accused at the time motion is filed by the public prosecutor.

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WEBB v. DE LEON On June 1994, NBI filed with DOJ charging Webb with Rape with homicide. A panel of prosecutors was formed by the DOJ to conduct PI this panel was headed by ACSP Zuno. During PI claimed because he was in US and return only in PH i n 1992. Finding probable cause to hold respondents for trial recommending that an Information for rape and homicide be filed with Webb et al. Webb assails a premature the filing of the Information because they still have the right to appeal the adverse resolution of DOJ Panel to the SOJ. Was it premature due to inability to appeal? 

Exceptions to the Non-Interference of Courts While as a general policy, courts should not interfere in the conduct of preliminary investigation, leaving the investigating officers sufficient discretion to determine probable cause. What are the exceptions? In the case of Filadams Pharma v. CA: 1. When necessary to afford adequate protection to the constitutional rights of the accused; 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; 3. Where there is a prejudicial question which is sub judice; 4. When the acts of the officer are without or in excess of authority; 5. Where the prosecution is under an invalid law, ordinance or regulation; 6. When double jeopardy is clearly apparent; 7. Where the court has no j urisdiction over the offense; 8. Where it is a case of persecution rather than prosecution; 9. Where the charges are manifestly false and motivated by the lust for vengeance; and 10. When there is clearly no  prima facie  case against the accused and a motion to quash has been denied.

Remedies Against Refusal to File What are remedies of offended party in cases where government prosecutor unjustifiably refuses to file information against a person who appears to be responsible for a crime? Where the government prosecutor unreasonably refuses to file an information or to include a person as an accused therein despite the fact that the evidence clearly warrants such action, the offended party has the following remedies:

No. Basis of Filing is DOJ Order 223, an appeal or MR shall not hold the filing of the information in court, so if there is a motion it will not bar the filing. DOJ Order No. 223 allows the filing of the information even if the accused can still exercise the right to seek a review of prosecution recommendation. After PC is found, the Information is filed. Now, the accused can appeal to the SOJ the finding of PC under Section 4, but the Information will not be held in abeyance,  both information and appeal can both proceed simultaneously.

DUMLAO v. JUDGE PONFERRADA In 1995 7 were murdered the witnesses identified Flores et al and Atty. Tamargo and Modina gave orders. After PI there was PC found by State Prosecutor charged with multiple murder. Flores filed a review with DOJ – reversed Prosecutor and directed withdrawal of the said Information. A motion to withdraw were filed with RTC Manila. Later Judge Ponferrada granted the motion and dismissed the cases of Flores. Flores argues that SOJ cannot review the resolution of the public prosecutor after the cases had been filed in court. Can the SOJ review after the such Informations were filed in court? Yes.  RA 5180 the SOJ is vested with the power to review resolution of the provincial, city or chief state prosecutor. The filing of an information does not prevent SOJ from ordering the withdrawal of the case and to exercise exercise review power. In Crespo v. Mogul, while the SOJ can alter the findings, he cannot review the findings. He can MOVE FOR DISMISSAL.

1. In case of grave abuse of discretion, he may file an 2. 3.

4. 5.

action for mandamus to compel the prosecutor to file such an information; He may lodge a new complaint against the offenders before the Ombudsman and have a new examination conducted as required by law; He may institute administrative charges against the erring prosecutor, or a criminal complaint under Article 208 of RPC or a civil action of damages Art. 27 of the Civil Code. He may secure the appointment of another prosecutor; or He may institute another criminal action if no double  jeopardy is involved.

NOTE:  Can an appeal be made to the SOJ even if the information is filed in court? Yes. When the SOJ reverses the resolution of the prosecutor but the information was filed, the

SOJ cannot order withdrawal he can only direct prosecutor to file for a motion to dismiss, the court has to make its own decision whether to dismiss or not.

FIRST WOMEN CREDIT CORP v. BAYBAY Inv Pros found PC – CP approved but DOJ moved for withdrwal of the information. While this was happening, the Jacinto filed a motion to withdraw because of the DOJ motion, here Judge Baybay dismissed the criminal cases. Should the court make an independent assessment? Yes.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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While the SOJ is persuasive it is not binding to the courts. Court emphasized that Judge Baybay need not make a lengthy explanation.

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determination whether or not there is probable cause to hold the accused for trial.

NOTE: The CPO filed a Motion to Withdraw on October 23 and NOTE: Here we have the SOJ ordering Pros to move to dismiss the court judge however has to make an independent  judgment. The judge can either either grant deny, in here the motion of judgment – it does not matter if the resolution is short as long as he made his independent assessment. It suffices upon his personal evaluation he is convinced there is no probable cause to indict the accused.

the judge granted the motion on October 24. How can he study all of these voluminous documents, the judge could not have read the whole thing in the whole. This failure of Judge Eugenio to independently evaluate and assess the merits of the case against the accused violates the complainants right to due process and constitutes grave abuse of discretion amounting to excess of jurisdiction

AMANDA CRUZ v. WILFREDO CRUZ (2007) In 1996 the ACP recommended the dismissal of the complaint, sustained by the CCP and then the CSP and SOJ. The CA directed SOJ to file an information. And here comes the CA ordering the SOJ to file the information. Is that correct? Crespo v. Mogul – separation doctrine.

TOLENTINO v. JUDGE PAQUEO (2007) Failure to remit SSS despite demand, during arraignment moved for the deferment of the arraignment and moved for quash was granted by the court. The S tate prosecutor opposed the motion to quash. Whether or not the complaint or information by SP Tolentino has prior written authority or approval. The quashal was because there no prior written authority or approval of the provincial or city prosecutor. Who are authorized to approve? Who gave the prior authority? – Regional State Prosecutor he is not included in this list,  there is still no proper approval. He must get the approval of the Chief State Prosecutor.

SUMMERVILLE v. EUGENIO (2007) Kho et al raised CPO finding to SOJ – which affirmed the CPO. Whether or not judge is bound to adopt the SOJ finding. This is because once a complaint or information has been filed in court, any disposition of the case rests in the sound discretion of the court. [T]he trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and  jurisdiction to determine a prima facie case.

SORIANO v. MARCELO (2009) Resolution was forwarded to ACP – meanwhile Palad filed a motion to reopen the case for she was not given a copy of the subpoena. Dimagiba recommended the reopening of the case. March 26, 2002 Balasbas issued a subpoena. The reopening of the case prompted Soriano to file with OMB. Soriano alleged that Palad received an unwarranted advantage. Graft Investigation Office dismissed. Was the dismissal proper? Although Balasbas initially recommended filing of a criminal case against Palad, this recommendation was still subject to the approval of his superiors, Dimagiba and the City Prosecutor. Balasbas, as investigating prosecutor, had no power or control over the final disposition of Palads motion to reopen the case. Conducting a preliminary investigation for the purpose of determining whether there exists probable cause to prosecute a person for the commission of a crime, including the determination of whether to conclude, reopen or dismiss the criminal complaint subject of the preliminary investigation, is a matter that rests within the sound discretion of the provincial or city prosecutor.

NOTE: Can an investigating prosecutor reopen a case, after he has already submitted resolution recommending the filing of an information? When the City Prosecutor directed him to allow the respondent to allow him to file the counter-affidavit under Section 3. The superior here has the jurisdiction. This is favorable to the accused. Although there was a repeat of the PI and unfortunately the resolution was dismissal. The investigation prosecutor cannot be blamed for he  just followed the orders of prosecutor. 



LEE v. KBC BANK (2010) In this case, it can be readily seen from the October 24, 2001 Order of Judge Eugenio, granting the withdrawal of the Information, that the trial court glaringly failed to conduct its own determination of a prima facie case, and simply adopted the September 28, 2001 Resolution issued by the Secretary of Justice. Where the prosecution is, as in this case, disappointingly unsure, irresolute, and uncertain on whether it should prosecute the accused, the court should have been most circumspect and judicious in the resolution of the Motion to Withdraw Information, and should have conducted its own

State prosecutor recommended that the two counts of estafa be filed. SOJ directed Prosecutor to move for dismiss. Considering that the trial court has the power and duty to look into the propriety of the prosecution’s motion to dismiss, with much more reason is it for the trial court to evaluate and to make its own appreciation and conclusion, whether the modification of the charges and the dropping of one of the accused in the information, as recommended by the Justice Secretary, is substantiated by evidence.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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This should be the state of affairs, since the disposition of the case — such as its continuation or dismissal or exclusion of an accused — is reposed in the sound discretion of the trial court. In the present case, Judge Dumayas, in his 26 March 2003 Order, did not (1) positively state that the evidence against Lee and Lim is insufficient, (2) include a discussion of the merits of the case, (3) assess whether Secretary Perez’s conclusion is supported by evidence, (4) look at the basis of Secretary Perez’s recommendation, (5) embody his assessment in the order, and (6) state his reasons for granting the motion to withdraw the informations. Judge Dumayas’ failure to make his own evaluation of the merits of the case violates KBC Bank’s right to due process and constitutes grave abuse of discretion. Judge Dumayas’ 26 March 2003 Order granting the motion to withdraw the informations is void.

PLOPINIO v. CARINO (2010) Whether or not the charges before the OMB are considered as formal charges. In criminal cases, the determination that a person is formally charged. To summarize, a person shall be considered formally charged:

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Yes. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.

Verily, the Secretary of Justice was empowered to review the actions of the Provincial Fiscal during the preliminary investigation or the reinvestigation. In the case at bar, we find that there is nothing on record to show that respondents were given notice and an opportunity to be heard before the Secretary of Justice. For this reason, we remand the case to the Secretary of Justice with respect to respondents Dongail, Lorilla, Hulleza, and Cimatu for further proceedings, with the caveat that any resolution of the Secretary of Justice on the matter shall be subject to the approval of the trial court.

(1) In administrative proceedings (a) upon the filing of a complaint at the instance of the disciplining authority; or (b) upon the finding of the existence of a prima facie case by the disciplining authority, in case of a complaint filed by a private person.

NOTE: A Motion for Reinvestigation is filed before the court,

(2) In criminal proceedings (a) upon the finding of the existence of probable cause by the investigating prosecutor and the consequent filing of an information in court with the required prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy; (b) upon the finding of the existence of probable cause by the public prosecutor or by the judge in cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure; or (c) upon the finding of cause or ground to hold the accused for trial pursuant to Section 13 of the Revised Rule on Summary Procedure.

Q. If there is a petition for review or appeal before SOJ, and the

NOTE: ONLY UPON THE FILING OF THE INFORMATION IN COURT. Before that one cannot be considered as an accused. He is not yet “charged” during the PI, when “charged” means filing of an information in court.

FORTALEZA v. SOJ (2016) Investigation Prosecutor recommending dismissal for lack of PC. The second one was dismissed for actual and legal merit. This time, ACP Elmaco issued a Resolution finding PC. However, the case of Escalante et al. Later on ACP Elmaco released Dumail from the complaint and an Information was filed to the RTC. A wife of victim filed for a motion for reinvestigation, but the prosecutor did not do a reinvestigation but merely affirmed the Elmaco findings. However in December 13, 2004, a letter was sent for automatic review. Whether or not the SOJ motu proprio despite the fact that complainant did not file a petition for review.

and this was filed by the private complainant, it is not the only the accused. If the court in its own decision orders such reinvestigation, it must be conducted. The SOJ ordered for reinvestigation, not only upon petition but also motu proprio.

information has been filed, what if the SOJ does not find the crime but merely homicide, can the SOJ order the prosecutor to change, under Section 4 – the SOJ can only look two things. Affirmed the probable cause Direct prosecutor for a motion to dismiss, this is when the prosecutor can file for an Amended Information. There must first be a motion to dismiss.  



We already know that even if INF, the SOJ can review, the INF can still run in the case.

ADASA v. ABALOS (2007) OCP found PC resulting them to file two criminal cases against Adasa. Adasa plead not guilty. In 2001, Adasa filed to the DOJ a petition for review. SOJ recommended the withdrawal of the information. Abalos filed MR citing Section 7 of DOJ Circular 70 outrightly advises that a review after arraignment must be dismissed, DOJ does denied the MR. Can DOJ take cognizance of appeal after arraignment – No.

Section 7 is neither contradictory nor irreconcilable with Section 12. As can be seen above, Section 7 pertains to the action on the petition that the DOJ must take, while Section 12 enumerates the options the DOJ has with regard to the disposition of a petition for review or of an appeal.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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Moreover, the settled rule is that when an accused pleads to the charge, he is deemed to have waived the right to preliminary investigation and the right to question any irregularity that surrounds it. This precept is also applicable in cases of reinvestigation as well as in cases of review of such reinvestigation. In this case, when petitioner unconditionally pleaded to the charge, she effectively waived the reinvestigation of the case by the prosecutor as well as the right to appeal the result thereof to the DOJ Secretary. Thus, with the arraignment of the petitioner, the DOJ Secretary can no longer entertain the appeal or petition for review because petitioner had already waived or abandoned the same.

NOTE: Section 7 once the accused has been arraigned, the SOJ can no longer entertain a review of the resolution of prosecution. An appeal must be done BEFORE THE ACCUSED

IS ARRAIGNED. SALES v. ADAPON (2016) It was the son filed falsification against the Adapons. Prosecutor Cuecas (R112, S4) that it is impossible for him to continue with PI and she was not able to attend the clarificatory hearing, it went to the DOJ – the evidence is already sufficient. Now it went to the Court of Appeals – stating that the Inv Pros has to personally examined the complainant. Is the failure to appear personally at the clarificatory hearing? 

No.  It does not require inquiry whether or not. The records contained sufficient evidence, she was represented by her son, Inv Pros should have granted her request to have her deposition instead. Inv Pros failed to specify the matters still needing to be clarified. CA had a restrictive reading of the word “complainant,” is the state not necessarily the private party.

NOTE: The clarificatory hearing is not Rule 112, Section 4 is talking about – personally examined . Clarificatory hearing is not mandatory. Regarding the examination of the complainant, it is sufficient, that a prosecutor or authorized officer is the one who swears, that is what the certification means.

MAXIMO v. VILLAPANDO (2017) Maximo and Panganiban filed a criminal complaint against Villapando, Jr. The complaints were ACP Canobas and ACP Vermug, Jr – then issued a PC for the crime for perjury – information was signed by ACP and certified ACP. Alleged to be improper for it did not bear the approval of the CP, but on the information was with the prior authority. It did not comply.

No complaint or information may be filed or dismissed without written authority of the CP Aspi obtained.   There must be a demonstration, the court does not acquire  jurisdiction. A certification is not enough,  in this case it did not happen.

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(a) By the Regional Trial Court. –  Within ten (10) days from the filing of the complaint or information, the  judge shall personally evaluate evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order when the complaint or information was pursuant to Section 6 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information. (b) By the Municipal Trial Court. –  When required pursuant to the second paragraph of Section 1 of this Rule, the Preliminary Investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court SHALL be conducted by the prosecutor. The procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section. (c) When Warrant of Arrest not Necessary. – A warrant of of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information  was filed pursuant to Section 6 of this Rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original  jurisdiction. [As amended by AM 05-08-26-SC]. 05-08-26-SC].

Procedure to be Followed by an RTC or MTC Judge when Preliminary Investigation is Required A. He shall personally evaluate the resolution of the prosecutor and its supporting evidence: This must be done within ten (10) days from the filing of the complaint of information.

B. Step to be taken after personal evaluation: 1. If the evidence on record clearly fails to establish probable cause – immediately dismiss the case. 2. If he finds probable cause, he shall issue either a: a. Warrant of arrest,  or b. Commitment order when the complaint or information was filed pursuant to lawful warrantless arrest under Rule 112, Section 6.

C. What the judge may do in case of doubt He may order the prosecutor to present additional evidence within five (5) days from notice

D. Period for resolution The issue must be resolved by the court within thirty (30) days from the filing of the complaint or information.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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When MTC Judge Need Not Issue Warrant of Arrest 1. When the complaint or information was filed pursuant 2. 3.

to a lawful warrantless arrest; When the accused is charged for an offense punishable by fine only; or When the case is covered by the Rules of Summary Procedure (there is no issuance of warrant of arrest)

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What is required, is that judge must have sufficient supporting documents (complaints, affidavits, counter-affidavits, sworn statements of witnesses or transcript of stenographic notes) upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause.

Personal Determination by the Judge Probable Cause, Definition Probable cause for the issuance of warrant of arrest is the existence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested. Hence, the judge before issuing a warrant of arrest, must satisfy himself  that   that based on the evidence submitted, there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof. At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates such evidence in determining probable cause. The  judge merely determine the probability probability not certainty.

Probable Cause by Prosecutor Distinguished from Probable Cause by the Judge to Issue Warrant of Arrest Prosecutor Whether there is reasonable ground to believe that the accused is guilty of the offense charge and should be held for trial is what the prosecutor passes on.

Judge The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of  justice.

Since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to  justify the issuance of a warrant of arrest. arrest. The contents of the prosecutor’s report will support his own conclusion that there is reason to charged the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecution’s bare report upon which to legally sustain his own findings on the existence or non-existence of probable cause to issue an arrest order. It is not required that the entire records of the case during the Preliminary Investigation be submitted to and examined by the  judge. Resolution and the attached documents. The trial courts should not be unduly burdened by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of the accused.

Evidence Needed by for Issuance In Okabe v. Gutierrez, 429 SCRA 685, the judge issued a warrant of arrest based on the resolution, information and the affidavit of the complainant. It was ruled that the judge committed grave abuse of discretion in issuing the warrant. In determining the existence or non-existence of probable cause for the arrest of the accused, the judge should not rely solely on the report of the investigation prosecutor but also on the affidavits and the documentary evidence of the parties, the counter-affidavit of accused and witnesses, the TSN during the PI, if any submitted to the court.

Reliance on the Prosecutor’s Certification In  Abdula v. Guiani  326 SCRA 1 (2000), The judge issued a warrant and commented that there was “no reason for him to doubt the validity of the certification made by the prosecutor that a PI was conducted and that the probable cause was found to exist justifying the issuance of the warrant.” It was ruled here that the warrant is not valid.  The statement is an admission that the judge relied solely on the certification made by the prosecutor that PC exists. The Constitution itself commands  the judge to PERSONALLY DETERMINE  the probable cause in the issuance of warrants of arrest. He cannot adopt the judgment of the prosecutor regarding the existence of probable cause without doing his constitutional duty.

Reliance by Judge on Clerk In Talingdan v. Eduarte 366 SCRA 559 (2001), the judge here was made administratively liable when the judge issued the subject warrant of arrest without even such certification to rely upon and worse merely at the instance of the clerk who mechanically typed the warrant for his signature.

Examination of Witnesses In Webb v. De Leon 247 SCRA 652 (1995), the judge, in satisfying himself of the existence of probable cause for the issuance of the warrant of arrest, the judge is not required to personally examine the complainant and his witnesses . The following established doctrine and procedure, he shall: 1. Personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause, and on the basis hereof issue a warrant of arrest; 2. If on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Holding in Abeyance Arrest Pendency of Reinvestigation Can an RTC judge issue a warrant of arrest against an accused even before the prosecutor can conclude the preliminary investigation or reinvestigation he ordered?

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REDULLA v. SANDIGANBAYAN (2007) Five complaints were filed against Redulla et al for RA 3019, after investigation, the OMB before SB for three Informations, the OSP filed for Motion for Reinvestigation. OMB approved that there was no probable cause. There was a new OMB and ordered review and found PC instead. OMB filed and new INF, Redulla filed for a judicial determination of probable cause, the SB denied citing policy to respect of the OMB power. Is SB’s denial in order?  –  – No.

Yes.  Rule 112, Section 3 does not require that PI be first completed before a warrant of arrest may issue. What the rule simply provides is that no complaint or information for an offense may be filed without completing the PI. But nowhere is it mandated that PI must be complete before an arrest warrant may be issued. There is nothing also in Rule 112 suggesting that once a PI is granted, a warrant of arrest is lifted or recalled (Pen v. De Castro, 293 SCRA 1, 1998). (See Talag v. Reyes ).

The denial is in line with the SC policy of non-interference in the exercise of the OMB constitutionally mandated powers. As long as OMB resolution is supported by evidence, it will not be overturned.

Pendency of Motion to Hold in Abeyance

NOTE: In other words, lawyers abuse this provision and apply

Can a court commit grave abuse of authority in issuing an arrest warrant despite a pending motion to hold in abeyance the issuance of the same?

for judicial determination of probable cause, what the judge should only determine to find warrant of arrest. The judge should deny that.

No. When accused filed the omnibus motion, the court has not yet acquired jurisdiction over his person. With the filing of the information the trial court could then issue an arrest warrant.

Arrest Warrant Against “John Does” May judge issue warrants of arrest against persons designated merely as John Does? No.  An arrest warrant issued against John Does not one of whom the witnesses to the complaint could or would identify, is one of the nature of General Warrant – unconstitutional and totally subversive of liberty thus void and without effect. Pangandaman v. Cesar,  159 SCRA 599, 1988). (Pangandaman

AAA v. CARBONELL (2007) Information was filed against Azardon, Azardon filed a motion to hold abeyance all court proceedings to determine probable cause. Judge Antonio granted the motion directing AAA and witnesses for personal examination – but did not appear thus he dismissed. Does the judge has to personally examine the complainant the witnesses for a determination of PC? 

NO.  In this case, respondent Judge Carbonell dismissed

Arrest Warrant in Extradition

Criminal Case No. 6983 without taking into consideration the June 11, 2003 Resolution of 2nd Assistant Provincial Prosecutor Georgina Hidalgo, the October 13, 2003 Resolution of the panel of prosecutors, and the July 1, 2005 Resolution of the Department of Justice, all of which sustain a finding of probable cause against Arzadon.

In Government v. Purganan   389 SCRA 623 (2002), the US Government through DOJ filed with RTC a petition for extradition of Mark Jimenez who was facing various criminal charges in Florida. It prayed for his arrest, so judge set hearing. Is the potential extraditee entitled to notice and hearing before a warrant of arrest can issue? 

Moreover, he failed to evaluate the evidence in support thereof. Respondent judge’s finding of lack of probable cause was premised only on the complainant’s and her witnesses’ absence during the hearing scheduled by the respondent judge for the  judicial determination of probable cause. cause.

No. PD 1069, the Extradition Law, uses the word immediate to qualify the arrest of the accused. Arrest subsequent to a herring can no longer be considered immediate. Thus, immediately upon receipt of the petition, the judge shall make a prima facie finding of whether the petition is sufficient in form and substance and in compliance with PD 1069 if the judge is convinced, he issues a warrant for the arrest of the person and summon him to appear at scheduled hearings.

Even Article III, Section 2 of 1987 Constitution does not require notice or a hearing before the issuance of a warrant of arrest. What it merely requires is for the judge to determine probable cause by personal examination of complainants and witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest in such instances.

ONG v. GENIO (2009) What we should always remember the difference of two kinds between two kinds of probable cause.

INOCENTES v. SB Here Inocentes, there was a resolution by the SB finding PC, the INF filed before SB, to issue arrest warrant. Inocentes posted for bail and filed for judicial determination of probable cause. This is not allowed.

If you post bail, you can no longer question the PC, you must do this before posting bail . The findings of the SB is pointless because it already acquired JD over him due to the posting of bail.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

 When a person is lawfully arrested without a  warrant involving an offense which which requires a Preliminary Investigation, the complaint or information may be filed by a prosecutor without need of such preliminary investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly  with the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the complaint or information is filed, the person arrested may ask for a Preliminary Investigation in accordance with this Rule, but he must sign a waiver of the provision of Article 125 of the Revised Penal Code as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen days from its inception.  After the filing of the complaint of information in court  without a Preliminary Investigation, the accused may,  within five (5) days from the time he learns of its filing, ask for a Preliminary Investigation with the same right to adduce evidence in his defense as provided in this Rule.

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D. Who shall file the complaint or information against said person lawfully arrested without a warrant: 1. General Rule: The inquest prosecutor 2. Exceptions: In the absence or unavailability of the inquest prosecutor, the following may file the complaint directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person: a. The offended party, or b. A peace officer.

Effects When a Person Lawfully Arrested Without a Warrant Asks for a Preliminary Investigation In vestigation A. BEFORE the complaint of information is filed: 1. He must sign a waiver of the provision of Article 125 2. 3.

of the Revised Penal Code, in the presence of his counsel; but Despite the waiver, he may apply for bail, and The Preliminary Investigation must be terminated within 15 days from its inception;

B. AFTER the complaint or information is filed: f iled: 1. He may ask for a PI within five (5) days non-extendible, — The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be i nformed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively).

When Accused Lawfully Arrested Without a Warrant A. When Section is Applicable 1. When a person is lawfully arrested without warrant; 2. When the arrest involves an offense which requires

2. 3.

after learning that the complaint has been filed, otherwise, his right to PI is deemed waived, and He has right to adduce evidence in his defense during the PI, but This has to be done before he is arraigned as the entering of plea is deemed waiver of one’s right to Preliminary Investigation.

Inquest Proceedings, Definition An inquest is an informal and summary investigation conducted by a public prosecutor in a criminal case involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly charged in court. (Section 1, DOJ Circular No. 61) Inquests proceedings follow in cases where persons are arrested without the benefit of an arrest order or warrant, or are caught in the act of committing a criminal offense. Only offenses that would require preliminary investigation will have to go through inquest. Those not requiring preliminary investigation need not go through an inquest proceeding.

Preliminary Investigation.

B. When a complaint and information may be filed without need of the required preliminary investigation: When an inquest  has been conducted in accordance with existing rules.

C. Inquest investigation: An investigation based only on the affidavit of the offended party, police, and some witnesses.

Here, there is no need for preliminary investigation because there is a deadline for the accused to be detained. Otherwise the peace officer will be guilty of arbitrary detention – delay in the delivery. The purpose of the inquest proceedings in these cases is that while the state acknowledges the law enforcers’ authority to arrest and detain persons without a warrant, the state must also ensure that these persons are not unlawfully detained, and that they are not denied due process.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

The inquest establishes whether the evidence is sufficient enough to seek court approval to keep the person in detention. Prosecutors have a heavy burden to oversee police investigations in cases involving inquest proceedings (DOJ Circular 61 on New Rules on Inquest). Each police station or headquarters should in principle also have designated inquest prosecutors to process inquest procedures with a schedule of assignments for their regular inquest duties. The inquest requires the prosecutors to resolve the complaint the police filed in a prescribed period, which varies depending on the gravity of the offense. Cases punishable with light penalties must be resolved in 12 hours; those punishable with correctional penalties within 18 hours; and those punishable by afflictive or capital penalties, within 36 hours. If the inquest prosecutor fails to complete the proceedings in the prescribed period then the person must be released. How should the complaint or information be filed when the accused is lawfully arrested without warrant? The complaint or information may be filed by a prosecutor without need for a preliminary investigation provided an inquest proceeding has been conducted in accordance with existing rules. (Sec. 6, Rule 112, Rules of Court) Suppose there is no inquest prosecutor? Or there is an inquest prosecutor but he is not available, what will happen now to the case? In the absence of an inquest prosecutor, the offended party or any peace officer may file the complaint directly in court on the basis of the affidavit of the offended party or peace officer. (Sec. 6, Rule 112, Rules of Court)

Inquest During Holidays In Soria v. Desierto, 450 SCRA 339 (2005), when a person is arrested without a warrant on a Sunday or a holiday, the prosecutor need not hold an inquest and charge him within 1218-36 hours so as not to render him liable for Article 125 of the RPC if there are sufficient considerations enough to deter the conduct of such (e.g. time taken to look for the clerk or judge to open courthouse).

Posting of Bail Before Case is Filed A person lawfully arrested or detained but who has not yet been formally charged in court, can seek his provisional release through the filing of an application for bail. He need not wait for a formal complaint or information to be filed since bail is available to all persons.

Nature of the Five-Day Period May a motion for “reinvestigation”  be   be filed beyond the 5-day period form the time accused learns of the filing of the information filed against him? No.  This period is mandatory (People v. CA, 242 SCRA 645).

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When Accused is Illegally Arrested Duty of the Prosecutor Where a person is unlawfully arrested and the police files a complaint against him for inquest, what should prosecutor do? When the police files a complaint which is not proper for inquest, the prosecutor should immediately schedule a preliminary investigation to determine whether there is probable cause for charging the person in court. In such a situation a person is entitled to a preliminary investigation and that right should be accorded him without any conditions. He is also entitled to be released   forthwith subject only to his appearing at the preliminary investigation. (Go v. Court of  Appeals, 206 SCRA 138, 1992).

Duty of the Judge Where an accused has been ill egally arrested but thereafter the Office of the Prosecutor conducted an inquest, instead of a regular PI, an information was filed against him, what should the trial court do? Suspend proceedings and order PI.   The absence of PI does not affect jurisdiction but a mere irregularity of proceedings, it does not impair the validity of the Information or a ground to quash the information or nullify the order of arrest.

However, the trial court should suspend proceedings and order a PI considering that the inquest investigation conducted by the State Prosecutor is null and void.

Effect of Subsequent Issuance of Warrant When a person is unlawfully arrested without a warrant or invalid warrant, but subsequently a valid warrant is issued against him, can he question the validity of his continued detention? No.  The issue of his invalid arrest becomes moot and academic if the new warrant of arrest complies with the requirements. If the first warrant was unquestionably unquestionably void, release of the accused for that reason will be futile act as it will be followed by her immediate re-arrest – this court will not participate in such meaningless charade (People v. Sanchez ).\ ).\

REYNALDO DE CASTRO v. FERNANDEZ (2007) On June 11, 2002 there was a complaint for sexual assault against De Castro, the following day he was turned over ot the police, he was indorsed to the CP for inquest, thereafter CP, ordered his detention. June 18, 2002 CP filed an INF against De Castro – two days after, De Castro’s lawyer appear in court and asked for copies of file. July 1, 2002, he filed for Motion for Reinvestigation? Is De Castro entitled for PI? No. Rule 112, Section 6. The filing was on June 18, he asked for Motion for Reinvestigation on June 25. When did he know about it? When he is presumed to have known about, when he asked for his lawyer, notice to

lawyer, when Atty. Villarin requested for copies, De Castro already knew of the filing of INF, he filed on July 1 which is more than 5 days from the time he learned of the filing.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

LEVISTE v. ALAMEDA (2010) Such appeal to DOJ is not available in inquest, the private party should have availed of a PI before elevating to the SOJ. Does the private complainant have a similar right – yes. Leviste underwent inquest, what is the motion if you are the accused and inquest was conducted? As mentioned it is a motion for reinvestigation, before the information is filed in court, you can file for this in the prosecutor’s office. There are times the accused can learn of it before the filing of the INF. The Prosecutor has no choice but to do PI waiving A125, RPC. Where do you file for a motion for reinvestigation? To the court due to the Crespo v. Mogul ruling. This case, it is not only the accused, but also the private complainant with the permission of PUBPROS. 

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From the case: A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to fine. As an exception, the rules provide that there is no need for a preliminary investigation in cases of a lawful arrest without a warrant[29] involving such type of offense, so long as an inquest, where available, has been conducted.[30] Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly be charged in court. It is imperative to first take a closer look at the predicament of both the arrested person and the private complainant during the brief period of inquest, to grasp the respective remedies available to them before and after the filing of a complaint or information in court.

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Contrary to petitioners position that private complainant should have appealed to the DOJ Secretary, such remedy is not immediately available in cases subject of inquest. Noteworthy is the proviso that the appeal to the DOJ Secretary is by petition by a proper party under such rules as the Department of Justice may prescribe. The rule referred to is the 2000 National Prosecution Service Rule on Appeal, Section 1 of which provides that the Rule shall apply to appeals from resolutions x x x in cases subject of preliminary investigation/ reinvestigation. In cases subject of inquest, therefore, the private party should first avail of a preliminary investigation or reinvestigation, if any, before elevating the matter to the DOJ Secretary. In case the inquest proceedings yield no probable cause, the private complainant may pursue the case through the regular course of a preliminary investigation. ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the accused with another opportunity to ask for a preliminary investigation within five days from the time he learns of its filing. The Rules of Court and the New Rules on Inquest are silent, however, on whether the private complainant could invoke, as respondent heirs of the victim did in the present case, a similar right to ask for a reinvestigation. The Court holds that the private complainant can move for reinvestigation, subject to and in light of the ensuing disquisition. All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the public prosecutor. The private complainant in a criminal case is merely a witness and not a party to the case and cannot, by himself, ask for the reinvestigation of the case after the information had been filed in court, the proper party for that being the public prosecutor who has the control of the prosecution of the case.

BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private complainant may proceed in coordinating with the arresting officer and the inquest officer during the latters conduct of inquest. Meanwhile, the arrested person has the option to avail of a 15-day preliminary investigation, provided he duly signs a waiver of any objection against delay in his delivery to the proper judicial authorities under Article 125 of the Revised Penal Code. For obvious reasons, this remedy is not available to the private complainant since he cannot waive what he does not have. The benefit of the provisions of Article 125, which requires the filing of a complaint or information with the proper judicial authorities within the applicable period, belongs to the arrested person.

Thus, in cases where the private complainant is allowed to intervene by counsel in the criminal action, and is granted the authority to prosecute, the private complainant, by counsel and with the conformity of the public prosecutor, can file a motion for reinvestigation.

The accelerated process of inquest, owing to its summary nature and the attendant risk of running against Article 125, ends with either the prompt filing of an information in court or the immediate release of the arrested person. Notably, the rules on inquest do not provide for a motion for reconsideration.

NOTE: There is nothing in the rules that state that the accused

In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors must examine the Information vis-the resolution of the investigating prosecutor in order to make the necessary corrections or revisions and to ensure that the information is sufficient in form and substance.

shall be served a copy thereof, thus the counsel has to be alert upon such.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

(b) If filed with the Municipal Trial Court . – If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in Section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his  witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission of expiration of said period, dismiss the case. When finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest.

(a) Records supporting the information or complaint . – An information or complaint filed in court shall be supported by the affidavits and counteraffidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. (b) Record of preliminary investigation. – The record of the preliminary investigation, conducted by a prosecutor or other officers as may be authorized by law, shall not form part of the record of the case. However, the court, on its own initiative or on motion of any party, may order the production of the record or any of its party when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an evidence in the case by the requesting party. (As amended by AM No 05-08-26-SC, August 30, 2005).

Records Records Supporting the Information or Complaint filed in Court shall be Support By: 1. The affidavits, counter-affidavits of the parties and 2. 3.

their witnesses; Supporting evidence, and The resolution of the case

Record of the PI conducted by a Prosecutor or Other Officers as May be Authorized by Law: 1. Shall not form part of the record of the case 2. However, the court, on its own initiative or on motion any party, may order the production of the record of any of its part when: a. Necessary in the resolution of the case or any incident therein, or b. It is to be introduced as an evidence in the case by the requesting party.

Cases Not Requiring a PI nor covered by the Rule on Summary Procedure Case Covered by This Section Cases where imposable penalty is: 1. Maximum of 4 years and 2 months, and 2. Minimum of 6 months and 1 day.

Two Ways of Instituting a Criminal Case under Section 8 1. File the complaint with the prosecutor while observing the procedure outlined in Section 3.

2. File the complaint or information with the MTC. Procedure when the Complaint is filed Directly With the Prosecutor

Purpose of Requirement It is intended to allow the judge to personally determine the existence or non-existence of the probable cause for issuing a warrant of arrest against the accused. However, if the judge finds the records to be insufficient, he may order dismissal of the case, or direct the investigation prosecutor either to submit more evidence, to enable him to discharge his duty.

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The Complaint Must 1. State the address of the respondent, and 2. Be accompanied by: a. Affidavits (subscribed and sworn to and b.

certified) of the complainant and his witnesses, and Other supporting documents to establish probable cause;

Then: The prosecutor shall act on the complaint based on the (a) If filed with the prosecutor . – If the complaint is file directly with the prosecutor involving an offense punishable by imprisonment less than four (4)  years, two (2) months and one (1) day, the procedure outline in Section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing.

affidavits and other supporting documents submitted by the complainant within 10 days from its filing. The respondent is not Allowed to counter-affidavits. 

Procedure when the Complaint or Information is Filed with the MTC A. The Complaint Must 1. State the address of the respondent, and 2. Be accompanied by:

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

a. b.

Affidavits (subscribed and sworn to and certified) of the complainant and his witnesses, and Other supporting documents to establish probable cause;

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There are instances, when the judge need not issue a warrant of arrest, he may issue for summons but not for warrant of arrest. In summary rules, there is no arrest warrant at all, in here, there is discretion to issue warrant arrest or summons instead.

CARANDANG v. BASE B. If the Judge finds NO Probable Cause 1. He shall dismiss the complaint a. Within 10 days after the filing of the complaint or information

Only the judge can issue a commitment order, here the issuance of such is a duty of the clerk of court. She overstepped the boundaries of her function. The Clerk of Court has no power, the clerk can only issue upon authority the Judge.

b. After personally: NOTE:  Only a judge can issue an arrest warrant as well as a i. Evaluating the evidence, or ii. Examining in writing an under oath the complainant and his witnesses in the form of searching questions and answers, or

commitment order – it cannot be done by clerk of court.

ATTY. TABUJARA v. PEOPLE (2008) The Complaints were filed in 1991. Afable filed MTC. On 1999, Tabujara filed their Counter-Affidavit denying allegations. MTC Judge conducted a PI, issued an order dismissing for lack of PC.

2. He may require the submission of additional evidence; Within 10 days from notice, to determine further the existence of probable cause.

He issued Order reversing his own Order his basis was that the sworn allegation of witness De Lara. The judge issued a warrant of arrest. This falls on old rule of Section 9.

3. If the judge still finds no probable cause despite the additional evidence, 1. He shall dismiss the case; 2. Within 10 days from: a. Submission of additional evidence, or b. Expiration of the period to submit the additional evidence.

C. If the judges FINDS Probable Cause 1. He shall: a. Issue a warrant or arrest, or commitment

2.

order if the accused had already been arrested, and b. Hold the accused for trial He may issue summons instead of a warrant of arrest: If the judge is satisfied that there is no necessity for placing the accused under custody.

COMMENTARY: There are cases if the penalty is 6 months a below they are of summary below, what requires PI is 4y2m1d and above. Now what happens in between?  

This are under the MTC There are two ways that does not require PI.

File the complaint with the prosecutor follow the procedure under Section 3, meaning even if the case does not require PI, the prosecutor has to do the Section 3 thing – order dismissal or issue subpoena; within 5 days, the respondent is not allowed to file counter-affidavit. The prosecutor shall act in the affidavit and submit within 10 days. If there is no prosecutor, the complaint can be filed directly with MTC for trial – no need for PI. The complaint must be complete, the MTC Judge is given the authority to dismiss if he does not PC. If there is PC he shall issue a warrant of arrest or a commitment order.

When finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest.

NOTE: Here the SC said that the issuance of a warrant of arrest is not mandatory   – he may issue summons instead of a warrant. If you look at the provision, if you compare this to the present Rule 112, Section 8 – it is the same. So in cases that do not require PI, the judge does not have to go through the whole process, it is not mandatory. Here the issuance of warrant of arrest is not mandatory – he has to find a reason to issue such. such. The difference between between cases which do not require PI. In those with PI, the judge really has to issue a PC to issue warrant of arrest, here for this cases the judge has to look at the necessity to issue a warrant for the crimes are really not that grave.

BORLONGAN v. PENA (2010) They claimed that they were not afforded the right to submit their counter-affidavit. Then they argued that since no such counter-affidavit and supporting documents were submitted by the petitioners, the trial judge merely relied on the complaint-affidavit and attachments of the respondent in issuing the warrants of arrest, also in contravention with the Rules of Court. There is no need for PI because the crime of A172 is not under PI

NOTE: This is a case does not require PI so the respondent has no right to submit counter-affidavits. But why these arrive the SC, because prosecutors issue subpoena. The prosecutor can still dismiss, but here there is no need to conduct PI. This is Rule 112, Section 8 is stating.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

RULE 113  ARREST  Arrest is taking of a person into custody in order that he may be bound to answer for the commission of an offense.

Arrest DEFINITION: The

taking of a person into custody. PURPOSE: In order that he may be bound to answer for the commission of an offense.

Arrest Warrant by CID A warrant of arrest issued by the Commissioner of Immigration to be valid, must be for the sole purpose of executing a final order of deportation. A warrant of arrest issued by the Commissioner for purposes of investigation only is null and void for being unconstitutional. The constitutional provisions does not segregate arrest warrant and warrant of arrest. A person cannot be arrested without a valid warrant. As a general rule – but we have exceptions. Before the valid warrant may be issued, we have to look at the steps. 

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Under Rule 112, Section 5 on probable cause. It refers to a probable cause that the crime is probably committed by the accused. The judge does not have to personally examine the complainant and witnesses but the information.

Soliven v. Makasiar  if the basis of the document if there is no PC he may require the s ubmission of additional documents. The  judge only has has to evaluate evaluate the documents depending depending if there there is PI or no PI.

Requisites of a Valid Warrant 1. Must be in writing 2. Issued by a judge based on PC 3. Specifically describes a person to be arrested. What does (3) mean? His name should be there. It cannot be  just any person under the sun? s un? But there are times when the name of the accused is not known – there is no person to be arrested as John Doe. If it is a John Doe but there is a specific description – the security guard who is fat and has gold teeth – it is allowed something like that. As a general rule, John Doe is void unless there was a

description personae. Only a judge can issue a warrant of arrest , in this very minute exception, the President or authorized representative such as an order of deportation or contempt – if accused is at large – the President can issue. But when it comes to a point where the INF is filed to answer for the crime, the arrest warrant should be issued by the judge.

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 An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint necessary for his detention.

Procedure How Arrest is Made 1. By an actual restraint of the accused be arrested, or 2. By the submission of such person to the custody of the person making the arrest (voluntary submission)

Rules in Making Arrest 1. Violence or unnecessary force shall NOT be used in 2.

making an arrest, and The person shall NOT be subject to a greater restraint than is necessary for his detention. (There be actual restraint – ha ndcuff is already symbolic enough).

Actual Use of Force, Not Required  In People v. Sanchez 227 SCRA 627, application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required. It is enough that there be intent on the part of one of the parties to arrest the other and an intent on the part of the other to submit, under the belief and impression that submission is necessary. It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay.

Duties of the Arresting Officer 1. Arrest the accused, and 2. Deliver the accused to the nearest police station or jail without necessary delay.

Obligations of the Arresting Officer In People v. Albior 163 SCRA 332, at the time of a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and to show him the arrest warrant, if any. To inform him of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. To inform him of his right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means – by telephone if possible or by letter or messenger. We all know under the Bill of Rights every person arrested must be read his rights or the Miranda Warning must be given to the accused. Here we need not to expound such because it has already been discussed under the Constitutional Law.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the said period, the officer to whom it was assigned for execution shall make a report to the judge who issued the  warrant. In case of his failure to execute the warrant, he shall state the reasons therefore.

Steps in the Execution of the Warrant of Arrest When Should a Warrant be Executed Within 10 days from its receipt

Who shall cause the execution of the warrant? The head of office to whom the warrant of arrest was delivered. So who is this head? Maybe the head sheriff, and then sheriff will issue a warrant. But the situation nowadays, each branch has an assigned sheriff – so once this arrest warrant is issued is given to the sheriff of that particular branch. Normally, the sheriffs are in the assigned courts.

Duty of the Officer Assigned to Execute the Warrant 1. Within 10 days after the expiration of the period, he 2.

shall make a report to the judge who issued the warrant, and In case of his failure to execute the warrant, he shall, in his report, state there reasons therefore.

Q. What if lapse of 10 days, arrest warrant was not executed? The arrest warrant does not expire,  the 10 day period is for the sheriff or arresting officer to report, the warrant of arrest has no expiry date  for sometimes the accused cannot be located. So, the 10-day period is period. Arrest warrant is valid until executed or recalled by the judge, then it might lose its validity.

Lifetime of Arrest Warrant If the arrest warrant is not served within ten (10) days, must the court issue an alias warrant in order to justify the arrest of the accused? No.

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 A peace officer or a private person may, without a warrant arrest a person:  When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;  When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it;  When the person to be arrested arrested is a prisoner who has escaped from a penal establishment or place  where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 6 of Rule 112.

VALID WARRANTLESS ARRESTS A. When in the presence of the arresting officer or private person, the person to be arrested: 1. Has committed; 2. Is actually committing, or 3. Is attempting to commit a crime; [Section 5(a) known as in flagrante delicto rule]

B. When: 1. The offense has just been committed, and 2. The arresting officer has probable cause to believe, based personal knowledge of facts or circumstances that the person to be arrested has committed it. [Section 5(b) known as freshly committed  rule]  rule]

C. When the person to be arrested: 1. Is a prisoner who has escaped from a penal establishment or place where he is serving judgment

2. Is temporarily confined while his case is pending; or 3. Has escaped while being transferred from one confinement to another [Section 5(c) known as escapee rule]

ARREST IN FLAGRANTE DELICTO In People v. Givera,  no alias warrant is needed to make the arrest. Unless specifically provided in the warrant, the same remains enforceable until it is executed, recalled or quashed. The 10-day period provided in Rule 113, Section 4 is only a directive to the officer executing the warrant to make a return to the court. These are the procedures to be followed in the issuance and execution of the warrant. Note here that the arrest warrant does not have any expiration date and thus the 10-day period is merely for the report because the warrant cannot be execute for the accused cannot be located.

Meaning of In Flagrante Delicto In such in flagrante delicto arrests, the accused is apprehended at the very moment he is committed or attempting to commit or has just committed an offense in the presence  of the arresting officer. Accordingly for this exception to apply two elements must concur: 1. The person to be arrested must execute and overt act indicating that he has just committed, is actually committing or is attempting to commit a crime; and 2. Such overt act is done in the presence or within the view of the arresting officer. (People v. Chua,  396 SCRA 657, February 4, 2003).

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Meaning of “In his presence” 

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In People v. Evaristo, 216 SCRA 431 (1992), an offense is committed in the presence or within the view of an officer, is meant by the phrase, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbance created thereby and proceeds at once to the scene thereof. In the later cases, the SC clarified this. 

In Flagrante Delicto Arrest Based on Report, Prohibited In People v. Chua, it has been held that reliable information alone, absent any over act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Arrest During Buy-Bust Operation A warrantless arrest for such is valid. An arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest under Section 5(a) of the Rules of Court. Any search resulting from a lawful warrantless arrest is valid because the accused committed a crime in flagrante delicto, that is, the person arrested committed a crime in the presence of the arresting officers (Teodosio v. People).

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Alunday entered a plea of not guilty on November 22, 2000, and he raised the issue of irregularity of arrest only during his appeal to the Supreme Court. Deemed to have waived such defect  by submitting himself to the jurisdiction of the court by his counselassisted plea during his arraignment, actively participating in the trial and by not raising the objection before his arraignment.

So, the second issue will be academic, but nonetheless the court still answered, thus the Court entertained this question:

Issue 2: Was the offense committed in the presence or within the view of the arresting officer to justify a warrantless arrest under Section 5(a) of Rule 113? – Yes.

When in the presence or within the view of the arresting officer or private person, the person to be arrested: a. Has committed b. Is actually committing , or c. Is attempting to commit the crime. Alunday was caught in the act of cutting and gathering the marijuana plants from the marijuana plantation. Therefore, there was a valid warrantless arrest.

Continuing Offenses In the landmark Umil v. Ramos,  187 SCRA 311 (1990), the crime of rebellion is considered a continuing offense, the arrest without a warrant is justified because it can be said that he is committing and offense when arrest. The crimes of: Rebellion Subversion Conspiracy or proposal to commit such crimes Crimes or offenses committed in furtherance thereof Or in connection therewith These constitute direct assaults against he State and are in the nature of continuing crimes. A rebel may be deemed to be in flagrante delicto at all times for purposes of arrest.     

PEOPLE v. VELASCO (2007) The issue was whether the prosecuting officers complied with proceedings. The inquest proceedings can only be proper when the warrantless arrest was in relation to the crime. In this case, none of the officers saw him commit the crime of rebellion. Therefore, the officers did not have authority to conduct inquest. Inquest should be made on the crime the accused was arrested for. In this case he was arrested was for INCITING TO SEDITION the inquest was for rebellion, if it does not match the arrest then the inquest was invalid.

PEOPLE v. ALUNDAY (2008) Issue 1: Can Alunday still raise the issue of irregularity of arrest for the first time in an appeal before the Supreme Court? – No. Any objection involving a warrant of arrest or the procedure for the acquisition by the court of jurisdiction over the person of the accused must be made before he enters his plea otherwise the objection is deemed waived.

PEOPLE v. DELA CRUZ (2008) The warrantless arrest of accused-appellant was effected under Sec. 5(a), arrest of a suspect in flagrante delicto. For this type of warrantless arrest to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. Does the crime has to be seen? What needs to be seen an overt act which would indicate done in front of the arresting officer – not on the commission of the crime but for the overt act. Did they see anything to indicate that the accused is committing, has just committed or is actually committing the offense? In this case, the Supreme Court ruled that; the crime was for illegal possession of shabu – but he was holding a shotgun this does not have any relation to the possession of shabu. The act which they saw, must be related to the crime to have been committed as to justify the in flagrante delicto arrest. It must be related to the crime which he is charged. Accused-appellants act of pointing a firearm at the buy-bust team would have been sufficient basis for his arrest in flagrante delicto; however, the prosecution was not able to adequately prove that accused-appellant was committing an offense. Although accused-appellant merely denied possessing the firearm, the prosecutions charge was weak absent the presentation of the alleged firearm. He was eventually acquitted by the trial court because of this gaffe. His arrest, independent of the buy-bust operation targeting Boy Bicol, was therefore not lawful as he was not proved to be committing any offense.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

SALIBO v. WARDEN (2015) December 2009 Salibo returned in the PH, he was in Saudi when the Ampatuan Massacre happened. He was suspected to be the accused Malang. Salibo presented himself and clarified that he is not the same person that he is not Malang. However, the police officers arrested and detained. Salibo filed for a writ for habeas corpus. SolGen argued that he was charged with a valid information from the massacre case due to the Iligan case citing that it is cured by the filing of INF. Thus the petition for habeas corpus petition is academic. Salibo argued that these purport the name of Malang, for the arrest warrant was not under his name.

Issue: Whether the filing of INF and the subsequent issuance of arrest warrant cures the warrantless arrest? – No. The Ilagan is not applicable. In the dissenting opinion of Justice Teehankee: The majority decision holds that the filing of the information without preliminary investigation falls within the exceptions of Rule 112, sec. 7 and Rule 113, sec. 5 of the 1985 Rules on Criminal Procedure. Again, this is erroneous premise. The fiscal misinvoked and misapplied the cited rules. The petitioners are not persons "lawfully arrested without a warrant." The fiscal could not rely on the stale and inoperative PDA of January 25, 1985. Otherwise, the rules would be rendered nugatory, if all that was needed was to get a PDA and then serve it at one's whim and caprice when the very issuance of the PDA is premised on its imperative urgency and necessity as declared by the President himself. The majority decision then relies on Rule 113, Sec. 5 which authorizes arrests without warrant by a citizen or by a police officer who witnessed the arrestee in flagrante delicto, viz. in the act of committing the offense. Quite obviously, the arrest was not a citizen's arrest nor were they caught in flagrante delicto violating the law.

In this case that Datukan Malan Salibo is not the same person with Butukan S. Malang. Salibo presented documents that he was not here during the massacre – clearances and ID showing that he did not use the alias Butukan S. Malang. None of the three exceptions were present.   The filing of an INF cannot cure and invalid warrantless arrest and Salibo does not fall under the circumstances.

NOTE: Atty. Risonar merely went to Camp Catitipan to check on his any arrest papers issued against him. When he appeared there, he was arrested. The illegal arrest was cured by the INF. But now in this case, the SC – that the Ilagan ruling was wrong, this is by Justice Leonen. If you’re arrest is illegal no filing of INF against you will make it legal. T he fact that he was not even the guy does not matter. The fact he was arrested without a warrant but not him, and none of the exceptions apply then his arrest is illegal and invalid.

SINDAC v. PEOPLE (2016) A previous surveillance was made on Sindac’s alleged drug trade for a month, he was caught selling shabu, RTC convicted and that there was valid in flagrante delicto. – The SC held that arrest was not valid. Sindac’s talking was not considered as ongoing criminal activity – this is not an overt act.

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VILLAMOR v. PEOPLE (2017) Villamor and Bonaobra were charged with R A 9287 with illegal number games. The area was fenced with bamboo slats with two inches of gaps. Now upon entering the compound and confiscated the articles. When Bonaobra was at the door the officers entered the compound and shouting “caught in the act ka!” So he asked for a warrant and answered that “di na kailangan yan!” Was the arrest lawful? No. What tainted the legality are the following: 1. 15-20 meters 2. 5’7 to 5-9 feet bamboo slats 3. One and half to two inches apart gaps.

Given these factors, the officers admitted that they cannot see the contents of the “papelitos” the officers admitted negative. Thus, SC ruled that there was no valid arrest.

NOTE: Especially in buy-busts resulting in inquest, whom only the allegation of the complainant is taken into account, it is very important to get assistance from a lawyer from a law student to ask for PI and ask for a motion for reinvestigation. Here the fence was 5’7 to 5’9 and the gaps was 1.5 – 2 inches, the officers cannot actually what is going on? So definitely the arrest here was not valid under the flagrante delicto exception.

PERALTA v. PEOPLE (2017) Issue is whether the warrantless arrest valid? –  yes. In warrantless arrests made pursuant to Section 5 (a), Rule 113, two (2) elements must concur, namely: (a) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (b) such overt act is done in the presence or within the view of the arresting officer. On the other hand, Section 5 (b), Rule 113 requires for its application that at the time of the arrest, an offense had in fact  just been committed and the arresting officer had personal knowledge of facts indicating that the accused had committed it. In both instances, the officer's personal knowledge of the fact of the commission of an offense is essential. Under Section 5 (a), Rule 113 of the Revised Rules of Criminal Procedure, the officer himself witnesses the crime; while in Section 5 (b) of the same, he knows for a fact that a crime has just been committed. In this case, records show that upon the police officers' arrival at Pantal District, Dagupan City, they saw Peralta carrying a pistol, in plain view of everyone. This prompted the police officers to confront Peralta regarding the pistol, and when the latter was unable to produce a license for such pistol and/or a permit to carry the same, the former proceeded to arrest him and seize the pistol from him. Clearly, the police officer conducted a valid in flagrante delicto warrantless arrest on Peralta, thus, making the consequent search incidental thereto valid as a s well. At this point, it is well to

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

emphasize that the offense of illegal possession of firearms is malum prohibitum punished by special law and, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent. By carrying an unlicensed firearm you are committing a crime in flagrante delicto.

NOTE:  Remember the exceptions and requisites especially under Rule 113, Section 5(a)

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When Arrest is Accompanied by Search Where the accused fails to challenge the legality of the arrest before entering into trial, is he also precluded from questioning the legality of the search? No.  The waiver by the accused of his right to question the legality of his arrest does not necessarily carry with it his waiver of the right to question the admissibility of any evidence procured by the police or the occasion of or incidental to his illegal arrest or thereafter. The plea and actual participation of the accused in the trial would not cure the illegality of the admissible evidence (People v. Pua,  415 SCRA 540, 2003).

ARREST WHEN CRIME HAS JUST BEEN COMMITTED Freshly Committed Rule or Hot Pursuit Arrest

Offense Has Just Been Committed Arresting has probable cause, based on personal knowledge that the person to be arrested committed it. This is the third

kind of probable cause. 1. 2. 3.

PC for PI by the investigating prosecutor. PC for issuance of warrant of arrest by judge. PC for determination based on personal knowledge for warrantless arrest under hot pursuit [Section 5(b)]

Requisite of Probable Cause Definition of probable cause. cause . It means the actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrest is probable guilty of committing the offense, is based on actual facts. Witness provided the identity of culprit . In People v. Gerente, it was shown that under the circumstances of the case, since the policemen had personal knowledge of the violent death of the victim and of facts indicating that accused had killed him, they could lawfully arrest accused without a warrant. If they had postponed his arrest until they could obtain such, he would have fled the law. Witness Pinpointed to the Culprit. The arrest was held valid if it was based on their personal knowledge culled from the victim herself who pointed to the suspect as the assailant at the time of the arrest. The arrest of Vinalon in this case done immediately after the incident was valid for it was made by the arresting officers the victims pointed to him. Accordingly, the search and seizure are valid as incidental to a lawful arrest.

Waiver of Illegality of Arrest The accused appears to be illegally arrested without a warrant more than a month after the crime was committed and the kidnap victim was released. However, they only raise the illegality of their arrest on appeal before the Supreme Court. The failure to raise the illegality of the arrest before the trial court results to a waiver any of the irregularities relating to their warrantless arrest when they failed to file a motion to quash the Information on the ground, or to object any irregularity in their arrest before they were arraigned. They are now estopped from questioning the legality of their arrest. ( People People v. Ejandra , 429 SCRA 364, 2004).

PEOPLE v. MANAGO (2012) INF for RA 9165, PO3 Din was getting his haircut, a shootout commenced the suspects were able to flee, identifying Manago as one of the suspects. The next day, they set up checkpoint where they apprehended Manago using the “hot pursuit” arrest and was able to find shabu. The police officer here is saying it was under hot pursuit operation. Was there a valid warrantless arrest? – NO. In warrantless arrests made pursuant to Section 5 (b), it is essential that the 1. element of personal knowledge must be coupled with 2. the element of immediacy. Otherwise, the arrest may be nullified, and r esultantly, the items yielded through the search incidental thereto will be rendered inadmissible in consonance with the exclusionary rule of the 1987 Constitution.

Personal knowledge and Immediacy The phrase covers facts or, in the alternative, circumstances. According to the Black's Law Dictionary, "circumstances are attendant or accompanying facts, events or conditions." Circumstances may pertain to events or actions within the actual perception, personal evaluation or observation of the police officer at the scene of the crime. Thus, even though the police officer has not seen someone actually fleeing, he could still make a warrantless arrest if, based on his personal evaluation of the circumstances at the scene of the crime, he could determine the existence of probable cause that the person sought to be arrested has committed the crime. However, the determination of probable cause and the gathering of facts or circumstances should be made immediately after the commission of the crime in order to comply with the element of immediacy. In other words, the clincher in the element of "personal knowledge of facts or circumstances" is the required element of immediacy within which these facts or circumstances should be gathered. This required time element acts as a safeguard to ensure that the police officers have gathered the facts or perceived the circumstances within a very limited time frame. This guarantees that the police officers would have no time to base their probable cause finding on facts or circumstances obtained after an exhaustive investigation.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

The foregoing circumstances show that while the element of personal knowledge under Section 5 (b) above was present given that PO3 Din actually saw the March 15, 2007 robbery incident and even engaged the armed robbers in a shootout the required element of immediacy was not met. This is because, at the time the police officers effected the warrantless arrest upon Manago's person, investigation and verification proceedings were already conducted, which consequently yielded sufficient information on the suspects of the March 15, 2007 robbery incident.

NOTE:  Justice Perlas-Bernabe provided us two requirements are (1) element of personal knowledge; and (2) element of immediacy. Here there was time to investigate. Here in the old cases, it referred to how long, how many hours  so they differ with respect to “immediacy.”

SINDAC v. PEOPLE (2016) Advancing to a warrantless arrest based only on such information, absent circumstances that would lead to the arresting officer's "personal knowledge" as described in case law, unfortunately, skews from the exacting requirements of Section 5, Rule 113. It is settled that "reliable information" alone - even if it was a product of well-executed surveillance operations - is not sufficient to justify a warrantless arrest. To interpret "personal knowledge" as referring to a person's reputation or past criminal citations would create a dangerous precedent and unnecessarily stretch the authority and power of police officers to effect warrantless arrests based solely on knowledge of a person's previous criminal infractions, rendering nugatory the rigorous requisites. It is further required that the accused performs some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense, which, as already discussed, is missing in the instant case.

NOTE:  Another case by Perlas-Bernabe  but with different discussion – personal knowledge and circumstances). The act of giving can be anything under the sun – from the distance given. It could not be definitely identified.

ESCAPEES There are two kinds of escapees covered under Section 5(c): 1. Convicts in a penal establishment or place confined with final judgment; 2. Temporarily detained because these detainees are still undergoing trial. But when it comes from escaping, they can be arrested immediately even without a warrant – anybody can arrest. It does not have to in flagrante or freshly committed – it is no longer necessary. What is the best way of escaping? In transit  or when detainees to go to court. If they do that – arrest.

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Now there are other exceptions under Section 13, Rule 113: 1. Escapes or is rescued after the arrest. 2. Rule 114, Section 23 – when the crime is bailable, now there are times when he has to appear in court and the bondsman has to produce him, and if he does not appear he can be arrested without warrant. 3. Rule 114, Section 23 – when an accused under bail attempt to depart from the Philippines when his case is still pending. So what to do if you are a private person and happen to arrest a person under in flagrante delicto?  You   You bring that person to the nearest police station or jail, then he will undergo inquest proceeding so as not to violate Article 125 of the RPC.  An arrest may be made on any day and at any time of the day or night.

Commentaries It can be in the wee hours of the morning or during the office, there is no prohibition as to time.

 When making an arrest by virtue of a warrant, the office shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or  when giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of arrest but after the arrest, if the person arrest so requires, the warrant shall be shown to him as soon as practicabl practicable. e.

How Arrest is Effected by Virtue of a Valid Warrant General Rule: The officer must inform the person to be arrested of the: 1. Cause of the arrest; 2. Fact that a warrant has been issued for his arrest. Exceptions: The failure of the arresting officer to inform him of the above is excusable when: 1. Person to be arrested flees; 2. Person to be arrested forcibly resists before the officer has opportunity to so inform him, or

3. Giving of such information will imperil the arrest Possession by Arresting Officer of Warrant at the Time of the Arrest 1. The officer need not have the warrant in his possession at the time of the arrest;

2. After the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.

Showing a Copy of the Warrant A police officer may arrest a person at the time when he does not have a copy of the warrant in his possession but if the person arrested so requires, the warrant shall be shown to him as soon as practicable (Mallari v. CA, 256 SCRA 456).

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Commentaries Section 7 does not require that the warrant be in the possession of the officer, the important thing is that there is a warrant, he should only inform the cause and there is a warrant, it does not make the arrest invalid. The arrest includes the Miranda rights. What are the exceptions?

 When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or  when the giving of such information information will imperil the the arrest.

How Arrest is Effected by an Officer Without a Warrant General Rule: The officer must inform the person to be arrest of: 1. His arresting authority; and 2. The cause of his arrest

Exceptions: The private person’s failure to apprise the arrestee of the above is justified when: 1. Person to be arrested flees; 2. Person to be arrested forcibly resists before the office

3. 4. 5. 6.

has opportunity to inform him of the cause of his arrest and of the fact that a warrant has been issued for his arrest; Giving of such information will imperil the arrest; Person to be arrested ins then engaged in the commission of an offense; Person to be arrested is pursued immediately after the commission of an offense; or Person to be arrested is pursued immediately after escape.

 An officer making a lawful arrest may orally summon as many person as he deems necessary to assist him in effecting the arrest. Every person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance  without detriment to himself. himself.

Assistance while Arrest is Being Made

NOTE: This usually happens in buy bust this must be said to the arrested person, but there are exceptions. You do not have to recite such when they are there already smoking marijuana. This must be done by the arresting officer.

Right to Officer Making a Lawful Arrest

Exceptions: The officer’s failure to apprise the arrestee of the above is justified when: 1. Person to be arrested flees; 2. Person to be arrested forcibly resists before the office

Obligation of the Persons Summoned

3. 4. 5. 6.

has opportunity to inform him of the cause of his arrest and of the fact that a warrant has been issued for his arrest; Giving of such information will imperil the arrest; Person to be arrested ins then engaged in the commission of an offense; Person to be arrested is pursued immediately after the commission of an offense; or Person arrested is pursued immediately after escape. (People v. Mahinay).

 When making an arrest, a private person shall inform the person to be arrest of the intention to arrest him and the cause of the arrest, unless the latter is engaged in he commission of an offense, pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has the opportunity to inform him, or  when the giving of such information information will imperil the the arrest.

How Arrest is Effected by a Private Person General Rule: The private person must inform infor m the person to be arrest of: 1. Intention to arrest him, and 2. The cause of his arrest Note: The exceptions under these are the same.

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He may orally summon as many persons as he deems necessary to assist him in effecting the arrest.

Assist the arresting officer in effecting arrest, provided he can render such assistance without detriment to himself.

NOTE: The officer must exercise proper discretion on selecting the persons to be summoned. He must not choose to have the children in the streets or women who are physically fit for the assistance. If you are going to arrest  goons you cannot ask somebody as large as Hannah to help, what can she done, he must at least ask assistance from competent persons.

 An officer, in order to make make an arrest either by virtue of a warrant, or without a warrant as provided in Section 5, may break into any building or enclosure where the person to be arrested is or i s reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose.

Requisites for Breaking INTO a Building or Enclosure When Invoking Arrest 1. The person to be arrested is or is reasonably believed 2. 3.

to be inside said building or enclosure; The arresting officer has announced his authority and purpose; and The arresting officer is refused admittance.

NOTE: If he is inside his house, is this allowed? Yes, but there are requisites. Knock the door, ring the doorbell but nobody answers – therefore he can break into the building.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

 Whenever an officer officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom when necessary to liberate himself.

Right to Break OUT from a Building; Requisites 1. An officer has entered the building or enclosure in accordance with Section 11.

2. It is necessary to liberate himself. Commentary What if the arresting officers gets inside the house but he is locked inside, the arresting officer can break out from the enclosure and liberate himself therefrom. Meaning when he entered the building in accordance with Section 11 he has to liberate himself, if it is locked he can break the window or go through the backdoor. If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines.

Effects When a Person Lawfully Arrested Escapes or is Rescued 1. Any person may immediately pursue or retake him; 2. No warrant is required for his purpose, and 3. This may be carried out at any time and in any place within the Philippines

NOTE: This is another instance when warrantless arrest can be conducted by an officer. Note that when he is arrested, he is delivered to the police station or the jail.

 Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right.

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Now there are instances when accused are detained, they rot their for days, weeks, months and even years because they have no means of communication. Public phones are problematic so it is very pitiful for these people. Now we have mobile phones. Under this Section 14, this person has the right to be visited by any person member of the Philippine Bar – this is the right to be visited by a lawyer. He may confer privately with such person with any place. This is a constitutional right, the right to counsel. He can also be visited by a relative, subject to reasonable regulations. Sometimes it is difficult for the friends, that is why if you want to visit your friend who is in the jail, you must become a lawyer. Because lawyers are deemed, when visiting the jail, they are there to help whoever is inside.

IN RE: ALEJANO v. CABUAY (2005) May the detaining officer require that the lawyer may visit only business hours? – Yes. While counsel may not visit detainees any time they want, the fact that the detainees still have face-to-face meetings with their lawyers on a daily basis clearly shows that there is no impairment of detainee’s right to counsel. Lawyers could visit their clients between 8AM to 5PM with a lunch break at 12PM. Clearly, visiting his hours pass the standard of reasonableness. The last paragraph of Section 4(b) of RA 7438 provides the standard to make regulations in detention centers allowable: “such reasonable measures as may be necessary to secure the detainee’s safety and prevent his escape.” In the present case, the visiting hours accorded to the lawyers of the detainees are reasonably connected to the legislation to the legitimate purpose of securing the safety and preventing the escape of all detainees.

Who Has the Right to Visit the Person Accused A. Any Member of the Philippine Bar 1. At the request of the person arrested or of another acting in his behalf;

2. May confer privately with such person: a. In the jail or any other place of custody; b. At any hour of the day or night B. A relative of the person arrested, subject to reasonable regulations. Visiting Hours The detaining officer can require that counsel be only allowed during business hours and this does not impair the right to counsel. This pass the standard of reasonableness. From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

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RULE 126 SEARCH AND SEIZURE

Exception for compelling reason before any court in Judicial Region where the crime is commission, if known, or where the warrant shall be enforced.

 A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace office, commanding him to search for personal property described therein and bring it before the court.

Perhaps the crime is in Davao, but the search is in Digos, s o for compelling reason, the RTC Davao can issue a SW for a search in Digos. But ordinarily RTC Davao is limited to Davao.

Definition and Elements of a Search Warrant (SW) 1. It is an Order in writing; 2. Issued in the name of the People of the Philippines; 3. Signed by a judge; and 4. Directed to a peace officer commanding him to: a. Search for a personal property  described b.

therein, and Bring it before the Court. [OPSD-SB]

Non-Judicial Search Warrants May the Secretary of Labor issue search warrants in cases of illegal recruitment as provided under Article 38 of Labor Code? No. The Secretary of Labor, not being a judge, may not issue search or arrest warrants. To that extent, Article 38(c), is unconstitutional and no force and effect ( Salazar v. Achacoso ).

Exception: Under the Tariff and Customs Code, the Customs Commissioner or his authorized representative can issue a search warrant. There are times when the courts are closed thus the Commissioner is allowed but only for violation of the

Tariff and Customs Code. Difference from Arrest Warrant An arrest warrant can only be issued if the INF is already been filed meaning there is already a case, the accused to be arrested. But for SW, even if there is no case, who can be searched? – anyone. It allows peace officer to search anyone named in the warrant need not be accused. Despite that the application is still done before the court.

 An application for search warrant shall shall be filed with the following:  Any court within whose territorial jurisdiction a crime was committed. For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court  within the judicial region where the warrant shall be enforced. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

NOTE: There is a big difference from territorial jurisdiction from  judicial r egion. RTC Davao can issue SW in a crime in Davao. Now, Judicial Region 11 RTC Davao; Digos; Bansalan – larger.

This general rule and exception applies if there is no criminal case yet  for that crime, if there is already, there is only one place; where the crime is actually pending.

Where an Application for Search Warrant May be Filed General Rule Before any court within whose territorial jurisdiction a crime was committed.

Exception For Compelling reasons stated in application before: 1.

2.

Any court within the judicial region where the crime was committed if the place of the commission of the crime is known; Any court within the judicial region where the warrant shall be enforced.

Qualification – if the criminal action has already been filed: The application shall only be made in the court where the criminal action is pending.

1. Place of Application People v. Chiu 424 SCRA 72 | February 27, 2004 | Callejo, Sr.

Facts: The police applied for a Search Warrant (SW) from the Executive Judge of the RTC Pasay for the search of a residence in Quezon City. In the course of his deposition, the applicant told the judge that the shabu might be moved to another place, or that subject of the search warrant might get wind of the application if it is before Quezon.

Issue: Is there compelling reason for the issuance of the search warrant by the Executive Judge of Pasay City? – YES. Held: Determination of existence of compelling considerations of urgency, and the subject, time and place necessitating and  justifying of an application for a search warrant with a court other than the court having territorial jurisdiction over the place to be searched and things to be seized or where the materials are found is addressed to the sound discretion of the trial court where the application is filed. The policed file application for SW in RTC Pasay instead of RTC Quezon because of the possibility that shabu would be removed by accused from Quezon. The RTC Pasay Judge did not err in taking cognizance of and granting the application for a search warrant.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

2. Court with Power to Issue

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Held: Yes. A search warrant is merely a process issued by the court in the exercise of its ancillary jurisdiction   and not a

Search warrants involving these following special criminal cases 1. Heinous crimes, 2. Illegal gambling, 3. Illegal possession of firearms and ammunitions as well 4. As violations of the Comprehensive Dangerous Drugs Act of 2002, 5. The Intellectual Property Code, 6. The Anti-Money Laundering Act of 2001, 7. The Tariff and Customs Code, as amended, and 8. Other relevant laws that may hereafter be enacted by Congress, and included herein by the Supreme Court.

criminal action which it may entertain pursuant to its original  jurisdiction. The authority to issue search warrant is inherent in all courts and may be effected outside their TJ.

This Section shall be an exception to Section 2 of Rule 126 of the Rules of Court.

Kenneth Roy v. Taypan 331 SCRA 697 | May 11, 2000 | Bellosillo, J.

Issue: Does RTC Cebu Br. 12 have the authority to issue the SW considering that it was not designated as a special court for Intellectual Property Rights?

RE: REQUEST OF POLICE DIRECTOR (2009) Two letters were sent to SC both involving the application or procedural requirement for application of SW should be endorsed by the head of the PNP, NBI, Anti-Crime Task Force to be filed. First letter  –  – requested the court that he be allowed to delegate the endorsement of search warrant to the director of the directorate due to numerous demands of his office and it cannot be expeditious on the required endorsements of application for search warrant. – SC granted.

SPOUSES MARIMLA v. PEOPLE (2009) Executive Judge granted application and issued a SW, on Feb. 20, 2002 an INF for RA 6425 – they filed for a Motion to Quash for the issuance of SW was defective for it was not signed by the Director but signed by the Deputy Director and that Rule 126, Section 2 that shall be applied and not AM 99-10-09-SC. In the AM; it granted the Exec Judge and the Vice Exec authority to act on the application of PNP, NBI, PAOC-TF, REACT-TF with RTC of Manila and Quezon City for heinous crimes etc.

Q. Whether the SW is defective was not personally endorsed by Second letter –   requesting the clarification regarding the construction of the duration or effectivity of the resolution wherein due to an incident applied by a director for investigation was denied by the executive regional judge of RTC Manila because according to him, because the authority to delegate is inoperative, for it was only applicable to the incumbency of previous chief.

Now, in this letter, he is asking the court to issue a resolution granting a continuing authority to delegate the application

of search warrant of the Director of DIDM in behalf of the Chief of PNP. OCAT recommend amendment of guideline. The very specific under Section 12, Chapter V of Executive Judge Guidelines that the heads of PNP, NBI, ACTAF of AFP personally endorse applications of SW to be filed before the RTCs of Manila and Quezon deters suggested amendment to delete the word personally. It is now amended to – respective duly authorize officials .

NBI Head- No. There is nothing in the AM which prohibits from delegating the authority of endorsing the application for SW to their assistant heads.

Q. WON the SW was issued in violation of AM and Rule 126, Section 2 - No. The AM provides for guidelines that it shall only continue until further orders from the court and there was reiterated in AM 03-8-02-SC stating that the guidelines in the issuance of S W in special criminal cases by the RTCs of Manila and Quezon City SHALL BE EXCEPTION TO SECTION 2.  The crime here involved the old dangerous drugs act. 1. Applied for by head of agency or duly authorized representative of the agencies mentioned; 2. It must involve the particular crimes mentioned.

Another Exception under Intellectual Property Code: Why is it an Exception to Section 2? At present, Sec. 12, Chapter V of A.M. No. 03-8-02-SC, entitled Guidelines on the Selection and Appointment of Executive Judges and Defining their Powers, Prerogatives and Duties, dictates that – to issue Search Warrant to be Implemented Nationwide but there only certain entities can apply: 1. PNP 2. NBI 3. ACTAF of PNP These are the officers that can apply for a search warrant to the RTCs in Quezon and Manila.

AM 10-3-10 CRIMINAL PROCEDURE Special Commercial Courts in the NCR NC R with Authority to Issue Writs of Search and Seizure Enforceable Nationwide Special Commercial in: Quezon City Manila Makati, and Pasig Shall have authority to act on application for the issue of writs of search and seizure in civil action for violations of IP Code, which writs shall be enforceable nationwide.    

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Accordingly, the Executive Judges under AM 03-8-02-SC are relieved from issuing SW for IP Code violation. So these judges are now not allowed to issued search warrants involving IP Code Violation. It has now to be the Judges of the of Special Commercial Courts of the four mentioned courts only. 



What Kind of Personal Property may be Seized 1. Property Subject of the offense; 2. Property Stolen or Embezzled and other proceeds, or Fruits of the offense; or 3. Property Used or Intended to be used as the means of committing an offense. [S-SEF-UI]

TOMAS v. CIDG (2016) RA 8293 – PNP-CIDG; presented four application for issuance of search warrants for RTC Manila – approved by Chief of CIDG, the issuance of warrants. Tomas moved to quash the search warrant for it was in violation of AM 03-8-02-SC. He claimed that warrant should be personally endorsed  by  by the heads of the said agencies. The four applications were approved by CIDG Chief when it should have been by PNP Chief.

Issue: Whether application for SW is defective. – NO. CA held that they were defective thus there was a quashal which was final and executory – immutability of judgments. In this case, the SC ruled is just a caveat, although the CA decision has attained finality; it should not be followed. SC nothing in the AM prohibits the heads of the PNP, NBI and ACTAF to delegate their ministerial duty to endorse, an assistant head can perform such duties such be specified. The subordinates can be assigned with additional duties as long as not unlawful. The search warrants should not have been quashed   they already found PC and whatever defects were minor and technical and should have ordered correction, absence of endorsement is only for administrative liability and in no way renders SW useless.

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Laud v. People November 19, 2014 | Per Curiam On July 10, 2009, the PNP through PSUPT Fajardo applied with RTC Manila for SW three cage in Laud Compound in Ma-a, where the alleged victims of summarily executed by DDS may be found. It was applied for in Manila. In support, Abasola was presented in the RTC, where he said he saw the killing and he was part of the group. Vice Executive Judge Peralta found PC for SW and was enforced by PNP CIDG. With the SW, CIDG found the Laud Compound and found and dig up human remains.

Issue: WON human remains be subject of seizure. According to Laud, human remains are not personal property, he argues this cannot be subject of seizure. But according to SC, personal property under Rule 126, Section 3 actually refers to the mobility of the things – not to the capability to be

appropriated. Those can be transported from place to place, considering human bodies can be moved face to face, they are considered subject offense they prove the crime’s corpus delicti thus they are valid objects of SW under Rule 126, Section 3.

1. Return of Property Seized People v. Estrada

Grounds for Motion to Quash 1.

The place searched or the property seized are not those specified and described in the warrant; There is no probable cause.

334 SCRA 260 | June 26, 2000 | Ynares-Santiago, J.

Issue: Considering that the drugs were found genuine, though

But since the rules on IP Cases rules on 2011, hence, from that point onward all application for search warrants on IP Code should be made before Special Commercial Court Judges

illegally imported, and were seized under a void   warrant for failure to particularly describe the place, must they be returned to their owner? No.  Even if the drugs seized were genuine and even if they contain proper chemicals or ingredients for their production, if the seller has no permit from the proper government agency, they cannot be returned. The party seeking the issuance of a warrant has the burden to convince the judge that probable cause exists and to procure the necessary evidence to s how that the party against whom warrant was directed is not authorized by BFAD.

 A search  warrant may be issued for the search and seizure of personal property: Subject of the offense; Stolen or embezzled and other proceeds, or fruits of the offense; or Used or intended to be used as the means of committing an offense.

 A search warrant shall not issue except upon 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 witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

2.

Commentary The applications were made on Oct. 24, 2007; the crime is a violation of RA 8293 or the IP Code, here the executive judge of Manila and Quezon City were still allowed to issue search warrants for crimes of IP Code,

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Requisites for Issuing a Search Warrant 1. There must be an Application in writing under oath; Applicant can be anyone, anywhere n TJ. No need for head of agency, anyone, any crime and anywhere within the TJ.

2. There must be Probable cause; 3. It can only be issued in connection with One specific offense;

a. To be determined by the Judge; b. After Examination under oath or affirmation 4.

of the complainant and the witnesses he may produce; - PERSONAL EXAMINATION It must Particularly describe; a. The Place to be searched   which may be anywhere in the Philippines, and b. The Objects to be seized.

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People v. Estrada  296 SCRA 383 (1998) Mere allegation of the application as to the non-existence of a license is not sufficient to establish probable cause. A certification to that effect from DOH (unlicensed drugs case). People v. Salanguit  356  356 SCRA 683 (2001) The fact that there was no PC for seizure of drug paraphernalia does not mean that the whole search warrant is void. It would be a drastic remedy indeed if a warrant, which was issued on probable cause and particularly describing the things to be seized is to be invalidated as a whole just because the judge erred in authorizing a search for other items not supported.

SPECIFIC DESCRIPTION OF THE PLACE People v. CA

NOTE: This is the fourth kind of probable cause encountered to be determined by the judge.

291 SCRA 400 | June 25, 1998 | Narvasa, J.

Facts: Upon application by police, judge issued an S W ordering There must be a specific offense connected to the application. Thus, there must be personal examination of complainant and witnesses. This is different from PC of a search warrant.

Probable Cause In Issuance of Search Warrants People v. Aruta 288 SCRA 626 | April 3, 1998 | Romero J. It generally signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged. It refers to the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe than an offense has been committed and that the articles sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. There must be substantial evidence that the items sought are in fact seizable by virtue of being connected with criminal activity, and that items will be found in the place to be s earched.

Requisites in the Determination of Probable Cause In the case of Pendon v. CA, 191 S 429, November 16, 1990, it is required that: 1. The judge must examine the witnesses (and the complainant) personally; 2. The examination must be under oath (or affirmation); 3. The examination must be reduced to writing in the form of searching questions and answers.

Illustrations of Probable Cause for Search Warrants PICOP v. Asuncion 307 SCRA 253 (1999) The absence of license but was not shown in evidence during the time of application for search warrant, the applicant must show a justifiable reason therefor during examination.

the search of the Apartment 1207 but police instead served warrant not there but at Apartment 1, which resulted to the arrest of the accused and seizure of guns and explosives The police claimed that it was Apartment 1 they had in mind. Is the search considered valid?

Held: No. What is material is the place stated in the warrant itself, not what applicants had in mind. It cannot be left to the discretion of the police officers conducting the search. PICOP v. Asuncion  307 SCRA 253 (1999) | 55 hectares compound  Upon application the judge ordered search “located at PICOP Compound, Barangay Tabon, Bislig, Surigao del Sur”  this  this was not deemed sufficient because it simply authorizes a search of the aforementioned premises but did not specify – it described a whole compound   which that compound is made up of 200 offices and buildings, 15 plants, 84 staff houses, 1 airship, etc. People v. Estrada  263 S 383 (1998) | 5,000 sqm compound  The SW is not valid. The place to be searched had not been described with particularity considering that the size of place it technically is considered as a  general warrant.  This is not allowed for it would transgress the requirement of particularity of the place to be searched.

Minor Defect in Description If the officer with the warrant can with reasonable effort and identify the place intended and distinguish it from other places in the co9mmunity. In this case, it was not shown that a street named Hernan Cortes is in Cebu for it is only in Mandaue thus not void (Uy v. BIR, 344 SCRA 36, 2000).

Defect in the Name of the Owner of the Place The warrant need not name the person who occupies the named premises. Where the warrant is issued for the search of a specifically described place only and not for the search of a person, the failure to name the owner or the occupant of such property in the warrant does not invalidate the warrant, it is not a fatal defect (Uy v. BIR, 334 SCRA 36, 2000).

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Mistake in the Name of the Person Mistakes in the name of the person do not invalidate the warrant provided that the place to be search is properly and particularly described (People v. Del Norte, 426 SCRA 383).

DESCRIPTION OF THE OBJECTS Violation of Intellectual Property Law The search warrant here is invalid because the articles and appliances enumerated in the SW are generally connected with a legitimate business and not necessarily involving piracy or with infringement – too general ( Columbia Pictures v. Flores).

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No.  In seizing the said items then, the police officers were exercising their own discretion and determining for themselves which items are proceeds or means. This absolutely impermissible. The constitutional requirement that the articles seized be particularly described  in the warrant is to limit the things to be seized to such particularly described.

This is to leave the officers of the law with no dis cretion to what articles they would seize. A search warrant is not a sweeping authority empowering a raiding party to have fishing expedition.

NOTE:  Plain view doctrine in this case was also held to be How Specific is Specific In the case of Microsoft v. Maxicorp, Inc.  438 SCRA 224, what is only required that a search warrant be specific as far as circumstances will ordinarily allow.

inapplicable because the typewriters, checks, checkbooks, dry seals, stamp pads are not contraband or sufficient evidence of the offense itself.

ONE OFFENSE RULE The description of the property be seized need not be technically precise. The articles to be seized were not only sufficiently identified physically, they were also specifically identified by stating their relation to the offense charged, a search warrant need not be void as a whole. The Law does not require that the things to be seized must be described in  precise and minute detail as to leave no room for doubt on the part of the s earching authorities. Otherwise, it will be virtually impossible for the applicants to obtain warrant as they would not know exactly (Kho v. Makalintal , 1999). Once described, the articles need not to be so invariant as to require absolute concordance between those seized and those described in the warrant. Substantial similarity of those articles  Al-Ghoul v. CA). described as a class or species would suffice ( Al-Ghoul

Violation of the Dangerous Drugs Act In the case of People v. Tee  395 SCRA 419 (2003) the description “an undetermined amount of marijuana must be held to satisfy the requirement of the constitution as to the particularity of the description. The description therein is:

1. As specific as the circumstances allow; 2. Expresses a conclusion of fact – not of law- by which 3.

the peace officers may be guided in making the search and seizure; Limits the things to be seized to those which bear direct relation to the offense for which it is issued.

Said warrant imposes a meaningful restriction upon the objects to be seized by the officers serving warrant, thereby preventing exploratory searches.

Seizure of Objects Not Described in the Warrant People v. Go 411 SCRA 81 (2003) In execution of a search warrant for the seizure of Dangerous Drugs, may the police also seize the money as well as a car which though not described in the warrant, they believe to be proceeds of the crime or means of committing of offense.

General Warrants, Not Allowed These are void and unconstitutional because it does not specify the place to be searched, the things to be seized, and the offense involved in the application.

Scatter-Shot Warrant, Not Allowed In the case of Vallejo v. CA 427 SCRA 658 (2004), a warrant for three offenses is not allowed is not void. A warrant must be issued upon probable cause in connection with one specific offense. In People v. Simbahon  (2003) even two offenses still invalid search warrant.

Related Offenses in One Search Warrant,  Allowed If the crime involves related offenses such as possession and selling of dangerous drugs under Section 5 and Section 15 under RA 9165.

Several Counts of the Same Offense Considering that there are as many offenses of infringement as there are rights protected in the various movie titles involved, does the warrant violate the rule that a search warrant must be issued only in connection with one specific offense? No. The search warrant indicates that it was issued for violation Section 56 of PD 49 only. The specification therein merely refer to the titles belonging to Columbia.

That there were several counts of the offense of copyright infringement and the search warrant uncovered several contraband is not to be confused with the number of offenses charged (Columbia Pictures v. CA, 261 SCRA 144, 1996). The  judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the  witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Duty of Judge Before Issuing Warrant 1. He must personally examine: (a) Complainant; and (b) Witnesses he may produce

2. The examination must be: (a) (b) (c) (d)

In the form of searching questions and answers; In writing; Under oath; and On facts personally known to them

3. The following must be attached to the record: (a) The sworn statements of the complainants and his witnesses; (b) The affidavits they submitted.

Searching Questions, Explained  The examination must be probing and exhaustive, not merely routinary or pro-form, if the claimed probable cause is to be established. The examining magistrate must not simply rehash of the contents of the affidavit but must make his own inquiry on the intent and justification of the application for a search warrant (Pendon v. CA, 191 SCRA 429, 1990).

Records of Deposition The depositions of the witnesses herein were not attached to the SW, but the purpose of the Rules of Court in requiring the depositions to be taken is to satisfy the examining magistrate of the existence of PC. The determination by the judge is already of great deference (People v. Tee).

People v. Mamaril

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COAC-COLA v. GOMEZ (2008) Has the application of search warrant was sufficient effectively charged an office for unfair competition. It is required that an underlying offense must exist. – No offense charged. The act charged – alleged hoarding of empty Coke Bottles – does not constitute an offense under section 168.3 of the IP Code. It is not an act within RA 8293. Pepsi does not pass off its goods as it off as Coca-Cola; what it alleges it outside RA 8293. When there is an application to a search warrant – it is not enough that it was sworn and particularly – it should have probable cause  – facts and circumstances which would lead a prudent man to believe that there was a crime committed.   If the judge cannot find the offense – if there is no crime – then there is no probable cause. Here clearly, the Pepsi warehouse is to be searched, but what is the crime charged – unfair competition? It should have been theft, the crime invoked was incorrect – it was not a crime under unfair competition – therefore there is no PC.

TAN v. SY TIONG GUE (2010) Two cases – robbery and qualified theft. No probable cause was found for SW for robbery; the items seized by virtue of search warrants based on the same incidents to be used as evidence. Whether the items seized by virtue of search warrant in robbery be used in qualified theft? – No. It is clear that there needs to be probable in connection with one specific offenses. The SW is for that particular crime, you cannot search something that is related to another crime even though the crimes are not related.

420 SCRA 622 | January 22, 2004 | Azcuna, J.

CHU v. JUDGE TAMIN (2003) Facts: During trial for possession of marijuana which was seized by virtue of an SW, the clerk of the issuing RTC testified that the available records do not include the transcript of the searching questions and answers made by the judge in connection with the application. Was the warrant validly issued? – No.

CENRO Officer Cruz applied for SW with Judge Tamin against Chu for violation of PD 705 for possessing forest products. Tamin issued warrant for seizure of mangrove lumber, this allowed CENRO to seize such.

Rule: The law requires that the judge must, before issuing the

Judge Tamin had already issued the SW against him for the 5th time and that there were no transcriptions of the examinations.

warrant PERSONALLY EXAMINE IN THE FORM OF SEARCHING QUESTIONS AND ANSWERS, in writing and under oath, the complainant and witnesses he may produce, he may produce on facts personally known to the m and attach to the record their sworn statements, together with the affidavits submitted.

Tamin denied and contended that he personally examined, printed transcript and he said that the reason was not in the records for the legal researcher failed to make a copy.

Issue: WON Judge Tamin was able to determine PC. – NO. Since the clerk of court could not produce the sworn statements showing that the judge examined them in the form of searching questions, the search warrant is tainted with illegality by the failure of the judge to conform with the with the essential requisites of the taking the depositions in writing and attaching them to the record.

Tamin either did not conduct required searching and if he did not put it in writing, failed to examine, failed to secure affidavit. SW is only justified upon finding of PC. The examination must be reduced into writing.

NOTE:  You ask searching question, the questions and the No presumption of regularity can be invoked in aid of the process when an officer undertakes to justify it.

answers are to be taken by the stenographer and transcribed. There must be proof that searching questions were indeed

asked in order to determine probable cause. From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

SONY MUSIC v. ESPANOL (2005) VRB charged Uy, Chung, Lim and an officer of SLC with PD 1987, the four were engaged in replication of videograms without license from VRB. Sony filed for copyright infringement under RA 8293 against the same. Agent Lavin stated before Judge Espanol that an unnamed person gave tip as to the presence of pirated CD.  No  probable cause.

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Commentary:  Taken note the requirement that two of the presenting the original item and fake items produced by the entity, you need not produce the original. There is no need, the rules do not require to present the original and show that such were fake – it is enough to allege that they are fake.   The  judge can already determine. The questions should not be merely pro-forma, this is not how searching questions should be made. 

QUELNAN v. PEOPLE (2007) Absent of the personal knowledge of witnesses and complaint because its issuance is deemed arbitrary. The issuance of the search warrant in question, they relied based on the information given by unnamed persons  and meaning that persons who gave the information, no one testified seeing the pirated discs in Laguna.

Team of policemen was formed to implement of SW and proceeded to City land Condo and went to the Security Office and went to Unit 615. When they knocked, they saw Quelnan, they then presented SW, then implemented and found drugs paraphernalia, tubings, and that there was a receipt of the properties seized.

Tips from unnamed persons are allowed if they are verified, the records shows such is not the case before us.

Quelnan questions for there was improper enforcement, and despite the knowledge that Quelnan was not the subject of such for the person alleged in the SW is Kim. Is this correct?

Commentary: In determining PC, the judge must elicit PC from complainant and witnesses from the personal evidence; not merely hearsay, this cannot be tantamount to probable cause. knowledge. The probable cause must be with personal knowledge.

MANLY SPORTSWEAR v. DADODETTE The crime alleged in violation of Infringement of Trademark. Dadodette moved to annul the issuance contending that the issuance for element of PC was not compliance. The SC said no there must be probable cause to be determined by the judge. The RTC found that the probable cause. Hence, the goods were not originally made by Manly. There is no probable cause, they found that the goods that were possessed. You have to be the offended party if you are to be complainant, so how can there be a search warrant. If you are the complainant, you apply for the search warrant. Since it was one’s own personal rights as an individual or corporation, cr ime then it must be that it must be an offended party and a crime

was committed against it and that there was PC. PEOPLE v. CHRISTOPHER CHOI (2005) There was a test buy for fake Marlboro cigarettes for violation of RA 8293 for the alleged and possession for fake Marlboro cigarettes The judges issued the search warrant – Choi assailed such, stating that PC was not established. Whether the SW was valid – it was valid. One of the requisites that the examination must be reduced, the searching questions propounded to the applicant and the witnesses depend largely on the discretion of the judge. The  judge must make his own inquiry, the question should be not be merely repetitious. Aside from testimony Sealey, the witness, they positively determined Choi possessed such fake cigarettes. The questions were sufficiently probing, not at all superficial and perfunctory, it constituted adequate bases. In applying of 20th Century Fox Corporation ruling was not allowed.

No. Nothing in the rules requires that the person occupying the premises must be required in the SW. Citing the case of Uy v. BIR if it was issued for the place, failure to name the owner or occupant of property does not invalidate warrant. Where the name of the owner is incorrectly inserted in the warrant does not render the warrant defective.

SW reveals that they were ordered to make immediate search to seize and take possession of offense and bring person to be dealt with. There was a valid warrantless arrest here  for he was caught in flagrante delicto; and even if he was not named, it is not material. It is the place of the search is required, in the warrant of arrest it is the name. Here it is enough, and whoever is there one can search.

COMERCIANTE v. PEOPLE (2015) Spotted Adan and Calag at 5meters standing and showing improper movements with one handing plastic sachets to the other. PO3 Calag introduced himself. There was probable cause, for when he saw them, he was aboard a motorcycle running at 30KPH in the SC, Comerciante contended that he did not affect a valid warrantless arrest and that the seized items should be inadmissible. WON valid warrantless search. – NO. The Supreme Court finds it highly implausible that PO3 Calag, even assuming that he has perfect vision, would be able to identify with reasonable accuracy especially from a distance of around 10 meters, and while aboard a motorcycle cruising at a speed of 30 kilometers per hour miniscule amounts of white crystalline substance inside two (2) very small plastic sachets held by Comerciante. The Court also notes that no other overt act could be properly attributed to Comerciante as to rouse suspicion in the mind of PO3 Calag that the former had just committed, was committing, or was about to commit a crime. Verily, the acts of standing around with a companion and handing over something to the latter cannot in any way be considered criminal criminal acts.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

In fact, even if Comerciante and his companion were showing "improper and unpleasant movements" as put by PO3 Calag, the same would not have been sufficient in order to effect a lawful warrantless arrest under Section 5 (a), Rule 113 of the Revised Rules on Criminal Procedure. That his reasonable suspicion bolstered by (a) the fact that he had seen his fellow officers arrest persons in possession of shabu; and (b) his trainings and seminars on illegal drugs when he was still assigned in the province are insufficient to create a conclusion that what he purportedly saw in Comerciante was indeed shabu. Stop and Frisk Rule Stop and frisk" searches (sometimes referred to as Terry searches) are necessary for law enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of offenses.

However, this should be balanced with the need to protect the privacy of citizens in accordance with Article III, Section 2 of the Constitution. The balance lies in the concept of " suspiciousness" present where the police officer finds himself or herself in. This may be undoubtedly based on the experience of the police officer. Experienced police officers have personal experience dealing with criminals and criminal behavior. Hence, they should have the ability to discern - based on facts that they themselves observe - whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the police officer, with his or her personal knowledge , must observe the facts leading to the suspicion of an illicit act. In this case, the Court reiterates that Comerciante's acts of standing around with a companion and handing over something to the latter do not constitute criminal acts. These circumstances are not enough to create a reasonable inference of criminal activity which would constitute a "genuine reason" for PO3 Calag to conduct a "stop and frisk" search on the former. In this light, the "stop and frisk" search made on Comerciante should be deemed unlawful. In sum, there was neither a valid warrantless arrest nor a valid "stop and frisk" search made on Comerciante. As such, the shabu purportedly seized from him is rendered inadmissible in evidence for being the proverbial fruit of the poisonous tree. Since the confiscated shabu is the very corpus delicti of the crime charged, Comerciante must necessarily be acquitted and exonerated from all criminal liability.

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If the  judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules.

Issuance and Form 1. When the judge shall issue the search warrant: a. When he is satisfied of the existence of such b.

facts upon which the application is based, or When he is satisfied that there is probable cause to believe that they exist.

2. Form of the search warrant: It must be substantially in the form prescribed by these Rules.

The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or  window of a house or anything therein to execute the  warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein.

Right to Break Door or Window A. Requisites for An Officer to Break Open any Outer in Inner Door or Window of a House 1. The officer gives notice of his purpose and authority; 2. Refused admittance to the place of directed s earch. B. Authorized Acts Upon Breaking In 1. The officer may execute the warrant, or 2. He may liberate: a. Himself, or b. Any person lawfully aiding him when unlawfully detained therein.

When to Break Door or Window; No Knock Entry In case of People v. Huang Zhen Hua  439 SCRA 350 (2004), the police must have a reasonable suspicion that knocking and announcing their presence under the particular circumstances would be dangerous or futile, or that it would inhibit the effective investigation of crime. What constitutes breaking is the lifting of latch, turning a door knob, unlocking a chain or hasp, removing a prop or pushing open a closed door of entrance to a house and even a closed screen door. As to how long an officer implementing a search warrant must wait before breaking open any door cannot be distilled into a constitutional stopwatch. – “No knock entry”

Commentary There is another kind of probable to cause to actually make a warrantless search based on the stop and frisk doctrine. This case squarely falls under Section 13 of the Rule 126 on the Criminal Procedure.

No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two (2) witnesses of sufficient age and discretion residing in the same locality.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Presumption of a Valid Search Warrant We follow Section 8 prescribing presence of certain individuals. The issue revolves factual – take note of the requirement. A searching party cannot search when the premises are empty.

Who Must be Present During a Speech 1. The lawful occupant of the house, room or premises 2. Any member of his family, or 3. In their absence – two witnesses of sufficient age and discretion residing in the same locality.

Presence of Occupants While the accused and the occupants were present during the search, they were not allowed  to  to actually witness the search of the premises. They should be the ones that should have accompanied the policemen while the search was being done and not the barangay tanods in their stead. Such a procedure, whereby the witnesses prescribed by law are prevented from actually observing and monitoring the search of the premises, violates both the spirit and the letter of the law (People v. Del Castillo, 439 SCRA 601, 2004).

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PANUNCIO v. PEOPLE (2009) There was a raid with search warrant, Panuncio signed a certification of orderly searched, an information was filed. Petitioner denied that she was the source of the falsified documents. She alleged that Manlite, which she used to co-own with her late husband, already stopped operating in April 1992 and her business was operating under the name Rosario Panuncio. She alleged that she was not at home when the raid took place, and when she returned home, the police authorities had already emptied her shelves and she was just forced to sign the search warrant, inventory receipt, and the certificate of orderly search. She further alleged that she was charged with falsification because she refused the police authorities demand for money. There was still valid search. Panuncio herself  signed  signed the certificate of orderly search when she arrived at her residence, assuming that she was not there, the search was still conducted with two witnesses – Brgy. Chairman and her employee Velasco.   Thus, in conclusion, there was a valid search – and these were admissible.

PEOPLE v. TIRA (2005) Application for search warrant issued by Judge Dayap; on March 9 a team implemented the SW and found Ernesto Tira and presented the SW and Ernesto showed them inside the house. Inside such they found a newly awakened Amadeo, they found shabu, drug paraphernalia and money. Tira contended the room search was made in their absence and that the room was leased to boarders. Was the search in compliance? No evidence was adduced that there were boarders. Thus, Tiras here were the lawful occupants. Then, Amadeo Tira was present when the policemen searched the inner room of the house. The articles and substances were found under the bed  on which the appellant Amadeo Tira slept. Everything was done in accordance with the rules.

SONY v. BRIGHT FUTURE (2007) Sony filed eight SW for copyright and trademark infringement; a raid was conducted on the premises of Bright Future Technologies, Inc. on April 1, 2005, that there were no witnesses that they were already inside. However, Sony alleged that the searching team waited for barangay officials, and were accompanied by the security. There was violation of Section 8 on two-witness rule. A security guard may not be considered a lawful occupants or a member of the occupants thus there was only one, and that there was no regularity.

NOTE: Security guard do not live in the premises, they are not occupants and they are there to watch the premises. They should have waited for the barangay officials. The fact that the searching party made the search invalid.

NOTE: One cannot use an excuse that one was not there, if that person actually signed a Certification of Orderly Search. While not in the rules, but the officers bring this with them. This is the proof to show the judge that the search was done in the presence of the lawful occupant or two witnesses. The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is one the person or in the place ordered to be searched, in which a case direction may be inserted that it be served anytime of the day or night.

Time of Making Search GENERAL RULE: The

warrant must direct that it be served in the

day time. EXCEPTION: It

may be served at any time of the day or night – if the affidavit asserts that the property is on the person or in the place ordered to be searched.

NOTE: Unlike an arrest warrant which can be served anytime, here there should be an assertion.  A search  warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void.

Validity of Search Warrant 1. Search warrant shall be valid for 10 days from its date 2. Thereafter, it shall be void. Multiple Service of Warrant May a service of warrant be served twice during its lifetime? Yes. It could be served anytime within the said period, and if its object or purpose cannot be accomplished in one day, the same may be continued ( Mustang Lumbar v. CA,  1986).

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Difference from arrest warrant. It has a lifetime of 10 days, outside the period, it shall be useless. If the police uses an expired warrant, however, a warrant within 10 days can be served as many times as necessary. For example, Day 1 – they can go back for Day 2 until 10 days allowed. The officer seizing 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 sei zure were made, or in the absence of such occupant must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in  which he found the seized property. property.

Obligation of Officer Seizing Property under a Warrant 1. He must give a detailed receipt for property seized; 2. The receipt: a. Must be given to the lawful occupant of the b.

premises in whose presence the search and seizure were made, or In the absence of such occupant, must be left in the place in which the seized property is found, in the presence of at least 2 witnesses of sufficient age and discretion in the same locality.

Commentary It is the seizing officer who must inventory in the receipt, what happens is that the one who signed is the one who has been searched – which is problematic. The one who takes the articles is the one who should sign for it.

Witness to the Receipt Where the occupants of the place to be searched were not actually present during the search, may a member of the searching party sign the receipt? No. The procedure is irregular for failure to comply with Section 11 of Rule 126. The receipt should be given who witnessed.

The receipt issued by the seizing party in the case at bar s howed that it was signed by a witness who was a policeman form Manila Police who accompanied NBI in the conduct of search (Quintero v. NBI, 162 SCRA 469, 1988).

Signing of the Receipt After the house where accused stayed was searched by virtue of a warrant, the police asked her to sign an inventory of the article seized which included a quantity of shabu. Considering that the accused was not assisted by counsel, is the receipt admissible in evidence?  –  – No. The accused was the victim of a clever ruse to make him sign an alleged receipt which in effect is an extra-judicial confession of the offense (People v. Del Castillo, 2004).

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The referred case shows that it is not the person searched, this is tantamount to a violation of one’s rights. After the true inventory and verified under oath. After such Section 12 shall be applied, if it was shown that the search warrant applied for and implemented was properly and correctly inventoried and receipt.

The office must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether Section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. The return on the search warrant shall be filed and kept by the custodian of the log book on search  warrants who shall enter therein the date of the return, the result, and other actions of the judge.  A violation of this section shall constitute a contempt of court.

Duties after Issuance of Warrant A. After Seizure: The officer must forthwith deliver to the judge who issued the warrant: 1. The property seized; 2. Together with a true inventory thereof duly verified under oath.

B. Duty of the Judge After Issuance of Search Warrant Ten (10) days after the issuance of the search warrant, he shall ascertain if the return has been made: 1. If no return has been made  – the judge shall summon the person to whom the warrant was issued and require him to explain why 2. If the return has been made – the judge shall a. Ascertain whether a receipt has been issued for the items seized (Section 11) b. Require that the property seized be delivered to him, and c. See to it that the property seized, together with a true inventory duly verified under oath, be delivered to him.

C. Duty of Custodian of the Log Book on Search Warrants 1. He shall file and keep the return of the search warrant 2. He shall enter in the log book a. The date of the return, b. The result, and c. Other actions of the judge

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

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D. Consequence of Violation of Section 12

Commentary

It shall constitute contempt of court.

This is the first exemption to the rule of requirement of warrant in searches. Here before a search can be considered be valid, there must be a valid arrest.

Custody of Issuing Court After the police officers seized shabu by virtue of search warrant, they delivered it to the PNP Crime Laboratory for examination instead of the court issuing SW. Is it proper? No. Mere tolerance by trial courts of such a practice does not make it right. There must be approval by the court issuing SW for the retention of the property seized by the police officers, and only then will their custody be considered custody of the court.

The arrest must be valid arrest or valid warrantless arrest. If the

arrest is valid, then the search may be made, the right is given to the arresting officers to search,  but what should be subject of search? – Dangerous weapons or anything that used in commission or proof of the offense. Person of the arrested; Room within immediate control – depends how the Court determines. Search must be contemporaneous and simultaneous with the arrest;  the arrest must be made first – and then the search.  



Absent such approval, the police offices have no authority to retain possession of the marijuana and more so to deliver to another agency (People v. Del Castillo, 2004).

Scope of the Search The duty of the searching officers to deliver the items seized to him to the court which issued the warrant is mandatory in character. This is evident by the use in the rule of the word “must” and before the Customs can have retention there must be approval by court (Tenorio v. CA, 2003). Section 12 is a mandatory provision.

In the case of Espano v. CA 288 SCRA 558 (1998), the scope of the search incident to a valid arrest is for the seizure of dangerous weapons or anything which may be used as proof of the commission of an offense. It may extend beyond  the person of the one arrest to include the premises or surroundings under his immediate control.

Search after Buy-Bust Operation  A person person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

Search Incident to a Lawful Arrest 1. What may be done to a person lawfully arrested: a. He may be searched without a warrant 2. What he may be searched for: a. Dangerous weapons, or b. Anything which may have been used or constitute proof in the commission of an offense.

Valid Warrantless Searches In the case of People v. Gonzales, 365 SCRA 17, the following are the instances where there can be warrantless searches: 1. Warrantless searches incidental to a lawful arrest; 2. Seizure of evidence in plain view; 3. Search of a moving vehicle; 4. Consented warrantless search; 5. Customs search; 6. Stop and frisk; and 7. Exigent and emergency circumstances.

Search Incident to a Lawful Arrest The law requires hat there first be a lawful arres t before a search can be made – the process cannot be reversed. If arrest is valid, the officer may searched the arrestee and the area within which the latter may reach for a weapon or destroy evidence or might furnish him means of escaping or committing violence to such (Macalat v. CA 283 SCRA 159, 1997).

For a search incident to lawful arrest to be valid, the search must be valid, the search must have been conducted at about the time of the arrest or immediately thereafter and only at the place  where the suspect was arrested, or the premises or surrounding under his immediately his control.

Searched of Parked Vehicle After Arrest The car was not part of the description of the place to be searched mentioned in the warrant and that the search of the car was not incidental to lawful arrest (People v. Ti Won Chua).

Other Exceptions 1. CONSENTED SEARCH – if the person allows search, then this is a valid search a. Person must possess such rights; the right to waive or consent; b. Person must know of the existence of such right – that a valid warrant c. Person intended to relinquish right Consent must be express, the burden of proof rests on the prosecution, only the person whose rights are invaded can give consent to a search – allowed also by express delegation. This is illustrated in the Veroy v. Layague,  where she consented, so that police went there and the searching party went in. 

If the consent was given for an object then it must be limited to such

In the case, the rebels are not to be found in the drawers.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Silence in Consented Search:  Silence means consent if outside residence, but not consent if inside the residence.

2.

PLAIN VIEW DOCTRINE  a. Prior justification for intrusion – they must be there justifiably in the first place. b. Illegality must be apparent;

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EPIE v. JUDGE-ULAT MARREDO (2007) In this case, the officers obtained information that a jeepney vehicle with a certain plate loaded with Benguet pine lumbers. They established checkpoint and flagged it down, but it did not stop and forced to them chase, upon lifting the loaded vegetables, they found pine lumbers. The police officers arrested Epie et al for they had no license to transport the  YES. lumber. Was the warrantless search and seizure?  YES.

3. STOP AND FRISK SEARCH: only requires one probable cause – this person was acting suspiciously. This is also known as Terry Search. This is based on the decision in Terry v. Ohio.

Steps to be Taken    

Office observes unusual conduct In light of experience, that a criminal activity is afoot That the person is armed and dangerous The police must introduce himself as such

Later on, the SC stated that one cannot conduct stop and frisk in many people in broad daylight, it must be with appropriate circumstances (late at night; deserted road).

The police officer can conduct carefully limited outer search of his clothing   to find for any weapon or object to protect himself and the people around.

4. SEARCH OF MOVING VEHICLES  a. b.

General Visual Search – checkpoints Extensive Search – body search by ordering passengers to alight, opening the compartment, opening the trunk and bags.

Principles under Cases  



Subject to general searches only Extensive search is only allowed only when there is probable cause – there is reasonable belief that the motorist is an offender because of a specific report when that person is described particularly, or the person about to be searched is acting suspiciously. Consent – if there is an extensive search, and you do not say anything, silence or failure to object except in coercive and intimidating circumstances.

Note the application of this violations can only be invoked against the State. For private institutions is not applicable.

5. SEARCH IN ENFORCEMENT OF CUSTOMS LAW  mere report is sufficient to establish probable cause, persons, vehicles, stores etc. but not dwelling houses. Dwelling houses cannot be searched by customs houses only dutiable.

This fall under a search of a moving vehicle – there must be a probable cause. When a vehicle sped away after noticing a checkpoint and even after having been flagged down to dissuade them from inspection, there exists PC to justify a reasonable belief on part of law enforcers.

COMMENTARY: This is a search of moving vehicle, the most abused term is probable cause, and here for this exception, the probable cause is the fact that the persons involved in the vehicle acted suspiciously. But, because they were acting suspiciously they had to be chased down. REVALDO v. PEOPLE (2009) Revaldo was charged with violation of Forest Code, when police officers went into the premises of Revaldo who was allegedly in possession of lumber without the necessary documents, and they found such, but Revaldo was not able to present one. They took and seized such for evidentiary purposes. They were not armed with a SW. Revaldo contended its inadmissibility. Whether or not the search and seizure incident to lawful arrest was proper. – Yes.

Revaldo was validly arrest pursuant to Forestry Code, the lumber were in plain view which are objects falling in plain view of the officer which is in right of the position of that view can seizure; requisites 1. Prior justification for an intrusion 2. Discovery of the evidence in plain view in inadvertent 3. Apparent illegality. When he was asked to present documents, he was not able to present there was probable cause to confiscate the lumber, therefore there was no necessity for an SW.

Commentary: Normally, the objects that need of license are in plain view, the police has the right to ask, do you have a license? If none, Then this is already a probable. This involved the exception of the plain view the illegality is apparent, so if there is no license for something that requires such it makes the illegality apparent.

PEOPLE v. MARIACOS (2010) 6.  AIRPORT SECURITY  7.  JAIL SECURITY  8. EXIGENCY 

They set up a checkpoint, but it did not yield any suspect or marijuana, he conducted a surveillance operation. He received info from secret agent from intelligence network that a marijuana was in a jeepney to leave for Poblacion. P02 Palayoc positioned on top of the jeepney. While in motion, he noticed a backpack, and he picked such and found bricks bricks of marijuana.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

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At that time, he has no idea, when it reached the Poblacion, it was now carried by two women and found Belen Mariacos. One of them got away. Belen was brought to the police station. The search preceded the arrest.

Held: No, whenever a search warrant has been issued by one

There must be a prior valid arrest. If the search substantially contemporaneous arrest, it can precede at the outset. The probable cause was based on the information – that the search was valid, the arrest on the search was valid. Search of a moving vehicle exception. It is impracticable to obtain a warrant when the s earch is conducted on moving vehicles since they can be moved out quickly. The search here was valid for it carried the contraband.

Motion to Quash and Preliminary Investigation

Court or Branch and a criminal prosecution is initiated in another, as a result of the service of s earch warrant case should be consolidated with the criminal case for orderly procedure.

Solid Triangle v. Sheriff of RTC 370 SCRA 491 | November 23, 2001 | Kapunan J.

 

Question: May the court issuing the search warrant quash the



same on the on the ground of lack of PC despite the pendency of a PI before the PROS office involving the possession of object which were seized by the SW?

Commentary: Note this is a second division ruling – this is not a ruling, if such is allowed we are adding another exception – the search cannot precede the arrest – here it was stated that the search was in a moving vehicle – allowed. But to say that search first but arrest after is made, what do we mean by contemporaneous?  Here  Here it was made before – but the search was made under a basis the information.

 A motion to quash and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case was subsequently filed in another court, the motion shall be resolved by the latter court.

Motion to Quash a Warrant or Suppress Evidence 1. If a criminal action has already been instituted; 2. 3.

It may be filed and acted upon only by the court where the action has been instituted. If no criminal action has been instituted; The motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court: Motion shall be resolved by latter court.

Venue of Motion to Quash Ong v. CA 370 SCRA 48 | November 21, 2001 | Quisumbing J.

Facts:  The RTC Ilocos Branch 17 issued SW for seizure of firearms belonging to Ong. Following the confiscation of unlicensed firearms, the Provincial Prosecutor charged Ong with violation PD 1866 which was raffled to Branch 15. Meanwhile Ong filed a motion to recall  SW before Branch 17.

Issue:  May Branch 17, recall warrant it previously issued and order the return of the seized items?

Held: YES.  The proceedings for the issuance/quashal of SW before a court and the PI before the prosecutor are entirely different from each other (Crespo v. Mogul). The court does not oblige the investigation PROS not to file INF for the ruling of a court is only for the quashal of warrant. It may be true that as a result of the quashal of the warrant, the private complainant is deprived of vital evidence to establish his case, but such is the inevitable consequence. But it does not render the PI academic.

Waiver of Illegality of Search Objects to the legality of the search to the admissibility of the evidence obtained thereby are deemed waived when NO OBJECTION TO THE LEGALITY of the SW is raised during the trial  of the case nor to the admissibility of the evidence obtained (Demaisip v. People 193 S 373, 1991).

GARAGAY v. PEOPLE (2000) Executive Judge of RTC Manila authorized SW for search of Garaygay’s house in Lapu-Lapu city and they were able to seized firearms, explosives prohibited under PD 1866. Can the Executive Judge Manila issue SW for LapuLapu? (AM) 

Garaygay filed a motion to quash not in the RTC Manila but on RTC of Lapu-Lapu. Is the RTC Lapu-Lapu authorized to resolve the motion to quash an SW issued of RTC Manila?

YES. The motion to quash may be filed in either courts (under the old ruling), Rule 126 however provides a different rule. Here even under the new rule, it was proper to file in RTC Lapu-Lapu.

Commentary: Normally SW precedes the filing of the case it could be a different court for SW and different of filing case, but once an information is filed it is the only court that can rule on the motion to quash. Note motion to quash – QUASH.

MANLY v. DADODETTE (2005) SW was issued against Dadodette on allegation that it harbored goods the copyright of which belonged to Manly Sportswear the search warrant was issued by RTC Manila. It was filed in the same RTC that issued a same court.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Yes. The power to issue is vested with the judges in the exercise of their judicial function. Therefore, the power to quash rests with the court which issued them, he is not precluded to issue a motion to quash.

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But it has been used and seized, what is the point of MTQ? So you file a motion to suppress evidence.

The issuance of quashal – what he is acting upon is the probable cause but not the entire pre-judging of the issue, therefore in quashing the SW there is no final determination. There was no INF filed. 

Comments: If RTC Br. 15 issued SW it is RTC Br. 15, the court that issued the warrant. Especially, if there is already a warrant, for example it was filed to Br. 10. Can RTC Br. 15 resolve the motion to quash – NO.  It is the RTC Br. 10 because we are talking about the branch not the court.

SKECHERS v. INTERPACIFIC (2006) It sued over trademark S  design, and engaged investigation with NBI and Zetetic and went to warehouses to survey and found that Inter Pacific had similar trademark. They filed to apply for SW, after the Br. 24 found PC to issue search warrant this was used seized from the warehouse several boxes. Inter Pacific filed a Motion to Quash on Br. 24 statin that there is no confusing similarity. The trial granted the quashal. It has the authority .

SEC v. MENDOZA (2012) NBI applied with RTC of Makati city and was grated for the seizure of documents and articles of Pastrana and Aband in Makati. Acting on such the certain documents were seized, the SEC filed a criminal complaint with DOJ, Pastrana and Abad were not in the list. Two petitions (Mendoza) in Muntinlupa the ground under Rule 126, Section 1 they are now praying seized documents should not be used against them (this petition for Prohibition, it is actually a petition to suppress to evidence). A motion filed by Pastrana in Makati for a Motion to Quash the ground. WON to MTQ the search warrant in the proper court, where should they file the MTQ? 

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Mendoza et al filed it in Muntinlupa and they said that the search warrant did not target the residence. The rule is clear there was no need to be the party to file for MTQ

Comments:  Mendoza et al were not included in the list of people to be searched, can somebody not included in the list can file a MTQ or to suppress evidence? Yes. In SW it is the place is that should be focused not that people, and if they are the ones who are there. Difference between MTQ and Motion to Suppress Evidence? A MTQ is targeted on the warrant, this is normally filed if warrant is not yet served so it cannot be used to search. 

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

RULE 127 PROVISIONAL REMEDIES IN CRIMINAL CASES

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C. Grounds for attachment 1. When the accused is about to abscond  from the 2.

  The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action.

Availability of Provisional Remedies 1. When provisional remedies in civil actions MAY be

3.

availed of in a criminal case: a. When they are applicable to the criminal case, and

4.

Philippines; When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; When the accused has concealed, removed, or disposed of his property, or is about do so; and When the accused resides outside the Philippines.

b. When they are in connection with the civil action deemed instituted with the criminal action.

2. When provisional remedies in civil actions CANNOT be availed in a criminal case: a. When the offended party has waived civil liability arising out of the offense charged, or

b. When the offended party has reserved his right to file a separate action arising out of the offense charged.  When the the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases:  When the accused is about to abscond from the Philippines;  When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;  When the accused has concealed, removed, or disposed of his property, or is about to do so; and  When the accused resides outside the Philippines.

Attachment A. When attachment may be availed of by the offended party: When the civil action is properly instituted in the criminal action.

B. Purpose of attachment To hold the property of the accused as security for the satisfaction of any judgment that may be recovered from the accused.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

RULE 114 BAIL  Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified, Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.

Definition Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman. Normally if you are not in custody of the law, there is no point in posting bail. This is bail – in exchange for one’s freedom. He gives security so he can be temporarily released.

Who Furnishes the Bail? 1. The person in custody whose release is sought; or 2. A bondsman There is a case where Mr. X lent his property to Mr. Y who was charged criminally and wanted to post bail, so he borrowed the title of Mr. X as bail bond. Mr. X is the bondsman. Mr. Y has absconded and then the bail bond was forfeited and later on Mr. X found that the property was already in the name of another person and he filed an action to quite title.

What is the Purpose of Bail? To guarantee said person’s appearance before any court. Because normally person on bail is undergoing trial, so most of the time, a person undergoing trial does not have to appear only on certain stages (plea, identification and promulgation) but the rest of the time there is no need. But when he is required he has to appear  thus the bail serves as a penalty. It is combine administration to criminal justice convenience to keep him from imprisoned while trial. It is not only to give him provisional liberty, but also to declog the jail – to work and provide for families. 

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Not everyone has the right to bail, this is a constitutional right but given only to persons who are not charged with RP when the evidence is strong (under the Constitution), so below that even RT and below, bail is a matter of right. Right given by the constitution. What if not RP but evidence of guilt is strong? What if accused is military person (Comendador v. De Villa). It does not apply under military under Court Martial. Right to bail springs from the presumption of innocence, after the trial he can be given acquittal. 

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Different Types of Bail 1. Corporate surety; - this is issued by a bonding company and they will issued a surety bond. So example is bail is P500K, the accused need not to put up P500K, the accused will just pay surety company a

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certain amount, and then the surety will just

guarantee  and issue a bond, not the money but a bond.

2. Property bond; property is put up by the accused if such conditions are violated it shall be sold at a public auction, the amount shall be forfeited in favor of the government.

3. Cash deposit; the most popular form of bail bond. 4. Recognizance; this is not property, money nor surety but this is just a persons released in his own custody or custody of a responsible person – this is not allowed anymore.

Who will decide what to post? It is the accused, the court cannot order what form of bond to be made, like property bond. Recognizance is not allowed as a general rule, only in certain cases.

Bail Prior to Arrest Q. May an accused who has not been arrested be granted bail? NO.  The right to bail can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty and it would be premature not to say incongruous, to file a petition for bail for someone whose freedom has yet to be curtailed (Docena-Caspe v. Bugtas, 2003).

Meaning of “In Custody of the Court” Q. When is a person deemed to be in custody for the purpose of bail application? Arrested or deprived of liberty. When either of the following happens: (a) He is arrested by virtue of a lawful arrest; or (b) He has voluntarily submitted submitted himself to jurisdiction of the court by surrendering to the proper authorities.

Tabao v. Judge Barataman : The father cannot file for bail for the accused was still not under the jurisdiction of the court via arrest or voluntarily surrender.

Principle of Constructive Custody Santiago v. Vasquez 217 SCRA 633 | January 27, 1993 | Regalado, J.

Facts: Accused was charged before the SB without having been arrested and without actually physically surrendering to the court, she posted bail stating that “she be considered as having placed herself under the jurisdiction” of the court as she was then in hospital. When later on the SB issued a Hold Departure Order against her, she claimed that said court had no  jurisdiction to do so.

Issue: Did the court validly acquire jurisdiction over accused?

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Held:  It has been held that where after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the court or was duly arrest, the court thereby acquires jurisdiction over the person of the accused. In this case, accused is deemed to have voluntarily submitted herself to the jurisdiction of the court upon the filing of her motion wherein she express sought leave that “ she be considered as having placed herself under the jurisdiction of the Sandiganbayan for purposes of the required trial and other  proceedings.”  Accused  Accused cannot now be heard to claim otherwise for, by her own representations, she is effectively estopped from asserting the contrary after she had recognized the  jurisdiction of the court.

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Held: NO.  Trial proceeded without the accused calling the attention of the trial court of his unresolved petition. It was only on appeal that he raised the issue. Thus, for failure to raise the issue at the earliest opportune time, accused is deemed to have waived the right to bail. In addition, when the issue has been rendered academic by the conviction of the accused. When an accused is charged with an offense punishable by reclusion perpetua  or life imprisonment or death, and the evidence of guilt is strong, bail must be denied.

Bail for Military Men Q. Are military men charged before court martial for violation of the Articles of War entitled to bail?

Q. May person charged with capital offense who is undergoing confinement in a hospital be admitted to bail even before he is arrested or voluntarily surrenders? It may be conceded that accused had indeed filed his motion for admission to bail before he was actually and physically under arrest. He may however, at that point in the factual ambience thereof, be considered as being constructively and legally under custody. Through his lawyers he voluntarily submitted himself. This may squarely fall as house arrest or confined to quarters ( Paderanga v. CA ).

Waiver of Right to Bail Even though cases are bailable maybe because of waiver via failure to pay the bond or waiver.

NO. Bail has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. The justification for this exception is that the unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. Aside from this structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of the democratic system are allowed the fiduciary use of firearms by the government for discharge of duties and responsibilities and are paid out of revenues collected from the people (Comendador v. De Villa, 200 SCRA 80, August 2, 1991).

Bail in Extradition Q.  In extradition proceedings, is the prospective extraditee

A. Express Waiver The right to bail can be waived. Rights guaranteed to one accused of a crime fall naturally into 2 classes: a. Those in which the state, as well as the accused; is interested; and b. Those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be. Bail is a right which is personal to the accused  and whose waiver would not be contrary to law, public order, etc.

B. Implied Waiver People v. Manes

entitled to post bail while the extradition proceedings are pending?

NO. Extradition proceedings are not criminal in nature and by using the term “before conviction”, it is apparent that the right to bail does not apply in extradition proceedings because extradition courts do not render judgments of conviction or acquittal ( Government v. Purganan,  2002). US GOVERNMENT v. PURGANAN (2002) This involved Mark Jimenez, he was wanted in the US for certain crimes like money laundering and related to stocks and he came to the Philippines, while he was here, US filed an extradition case against him.

303 SCRA 231 | February 17, 1999

Facts: Accused was charged with murder. He applied for bail but the judge set the case for trial without acting on such. He was convicted and on appeal he contended that the judge committed a serious error of law when he tried the case without resolving the application for bail.

Issue: Is the contention of the accused correct?

At that time he was free but he was arrested. Now when an extradition case is filed, our government can arrest that person and detain him and an extradition proceedings. Is he entitled to bail while pending? 

NO. He is not entitled to bail. NOTE: But now we have the case of Hong Kong Government v. Olalia.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

HONG KONG GOVERNMENT v. OLALIA (2007) The extraditee may be granted bail, it overturned the prior case of the Purganan. We have an extradition treaty with the British Colony of Hong Kong now Hong Kong was effect on 1997. Juan Antonio Munoz was looking for him, they issued a request for provision arrest. RTC Manila issued order for his arrest and they filed an extradition case against him. Judge Ricardo based on US v. Purganan, but he inhibited but was later on granted.

Bail can be given to an extraditee.  The extradition law is silent as to bail and signing UNDHR. During the case of Purganan that bail is only available to criminal proceedings. It also based its decision under the provisions of the constitution. The right of bail is given based on the presumption of the innocence of the accused, the right shall be given whenever it is available. In addition, it based on UN Declaration of Human Rights which is covered by the Article 2, Section 2 of the 1987 Constitution, the Philippines authorities are under obligation to give remedies to safeguard the right to liberty. Upon a closer at PD 1069 or the Extradition Law – extradition is the removal of an accused from the Philippines placing him at the disposal of foreign authorities. Extradition is not a criminal proceedings, but administrative

in character it is sui generis and exclusive to treaty obligations.

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  All kinds of ail are subject to the following conditions: The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the  judgment of the Regional Regional Trail Court, irrespective of whether the case was originally filed or appealed in it; The accused shall appear before the proper court  whenever required by the court court of these Rules; Rules; The failure of the accused to appear at the trial  without justification and despite due notice shall be deemed waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and The bondsman shall surrender the accused to the court for execution of the final judgment. The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles of the accused must be attached to the bail.

Conditions of the Bail Effectivity 1. The undertaking shall be effective upon approval; 2. It shall remain in force at all stages of the case until promulgation of the judgment of the RTC irrespective whether the case was: a. Original filed in the RTC b. Appealed to the RTC 3. It shall lose its effectivity if cancelled, whether or not  judgment has been rendered rendered by the RTC.

Obligation of Accused Out on Bail These are the following considerations before bail can be granted to a extraditee. (1) It deprives the liberty of the extraditee; (2) The means employed to attain the purpose of extradition which is the machinery of criminal law.

He shall appear before the court whenever required by the court or these Rules; the bondsman shall surrender the accused to the court for execution of the final judgment. The bondsman has the obligation to produce accused when the execution of judgment is rendered.

He remained incarcerated until 2001 and he was detained for two years by any standard such deprivation of liberty is serious, bail may be granted to a possible extraditee: 1. That he is not a flight risk or a danger to the community; and 2. That there is humanitarian reasons.

Effect of Failure of the Accused to Appear at the Trial without Justification and Despite Due Notice 1. It shall be deemed as a wavier of his right to be

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present thereat; and trial proceed in absentia.

2. For execution of the final judgment. Contents

Comments: This case overturn US v. Purganan, because bail is allowed in criminal cases, but in extradition proceedings, so if bail can be granted in criminal cases (which is higher) why not the administrative proceedings like extradition proceedings. This is an en banc  case of 2007 penned by Justice Sandoval Gutierrez. It is shown that an en banc ruling can overturn an earlier decision of the Supreme Court. Thus, extradition cases now allows the filing of bail. Thus it clearly overturns the case of US v. Purganan prohibiting bail in extradition proceedings by virtue of constitution and international law.

The original papers shall state: 1. The full name and address of the accused; 2. The amount of the undertaking, and 3. The conditions required by Section 2. What must be attached to the bail: Photographs of the accused: 1. Passport size; 2. Taken within the last six months; and 3. Showing his face, left and right profiles.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Effect of Conviction Q.  While the conviction is on appeal, may the accused be allowed to enjoy provisional liberty under the bail bonds they posted during trial? Under Section 5, Rule 114, court has the discretion whether or not to allow accused to continue on provisional liberty under the same bail bond posted during trial. The bail bond that the accused previously posted can only be used during the 15-day period and not during the entire period of the appeal. This is consistent with Section 2(a) which provides that the bail shall be effective upon approval and remain in force at all stages of the case, unless sooner cancelled, until the promulgation of the RTC , irrespective of whether the case was originally filed or appealed to it. This amendment is a departure from the old rules which provide that bail shall be effective and remain in force at all stages of the case until its full determination, and thus even during the period of appeal. Moreover, under the present rule, for accused to continue his provisional liberty, consent of the bondsman is necessary (Magguddatu v. CA, 2000).

Presence of Accused Q. In what instances may be an accused not be allowed to waive his presence in court? In certain stages of the proceedings, an accused on bail or tried in absentia may be required to appear, to wit: 1. At arraignment and plea, whether innocence or of guilt; 2. During trial whenever necessary for identification purposes, and 3. Promulgation of sentence, unless it is for a light offense, in which case the accused may appear by counsel or representative. At such stages of the proceedings, his presence is required and it cannot be waived (Lavides v. CA, 2000).

Presence during Trial Q. May the court order the forfeiture of the bail bond of the accused upon his failure to appear for trial where his presence is not specifically required by the Rules of Court?

NO. The accused shall appear before the proper court whenever so required by the Rules of Court. A bail bond may be forfeited only in instances where the presence of the accused is specifically required by the court or the Rules of Court and despite due notice to the bondsmen to produce him before the court on a given date, the accused fails to appear in person as so required (Marcos v. Ruiz, 1992).

Arraignment as Condition for Bail Q. May the court set as a condition that the bail bond of the accused will only be approved after he is arraigned?

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NO. There is no need to wait for arraignment, upon the arrest or deprivation of liberty he can already file for bail, arraignment is not a precondition of granting bail. To condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between: 1.

Filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held;

2.

Foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail.

Two scenarios would seriously undermine the constitutional right of the accused not be put in trial except upon valid complaint or information sufficient to charge him with a crime and his right to bail.

Q. If the person is under bail, can he travel? It depends. He has to get the permission of the court, so this was in the case of Manotok v. CA who was the husband in Aimee Marcos, in Silverio v. CA. When it comes to Hold Departure Order  only the RTC can issue an HDO, the MTC has no right to issue an HDO, so there is a possibility those under bail under HDO cases can travel. Under the constitution we also have the right to travel.

 No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.

A Person Under Detention by Legal Process Not Released or Transferred, Exceptions 1. Upon order of the court; or 2. When he is admitted to bail. Is this really being followed? No, let’s say the person is arrested and brought to Sta. Ana jail after spending some time there he is transferred to Maa City Jail it is not always with a court order. What about going the court to attend hearing – there is no need for a court order for it is not considered as a court transfer.

ORBE v. DIGANDANG (2009) This is en banc and per curiam. On February 14 PDEA-ARMM arrested Indag for alleged violation of RA 9165. They were released from custody of the Provincial Warden on the basis of the Custody Receipt by Marcus Digandang. Complainant alleges that the release was illegal for the offense were non-bailable offense. Digandang however alleged they needed medical attention and that the warden temporarily released custody of them for humanitarian reasons. Was this  proper?

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

NO. The accused were charged with a non-bailable offense, that they were released from detention on the basis merely of the Custody Receipt singed by Digandang. This is not which is contemplated under Section 3. It was the process server who signed, it should be the judge who should sign the release.

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Governor claims good faith in taking custody as Provincial Jail er basing on Article 1731 of the Administrative Code of 1917. However, nowhere in said provision that gives the provincial governor has the power to take custody of detention prisoner, at best he is only given administration of the jail, procurement of food and clothing.

AMBIL v. SANDIGANBAYAN (2009) Governor Ambil and Provincial Warden Apelado were charged with violation of Section 3(e) of RA 3019. They released the criminally charged Adalim and transferred to the residence of Governor for a period of 85 days and such act was without any court order. He only posted bail months after stay. Whether a provincial governor has authority to take custody of the prisoner. NO.

Before he can in case of insufficient number of jail. This provision is also superseded by the Section 3, Rule 114 of Rules of Criminal Procedure. Under separation of powers, only the court can release or transfer or the person. The governor has no authority to transfer even if the detainee is a mayor of the government.

AVAILABILITY OF BAIL (RULE 114, SECTIONS SECTI ONS 4, 5 and 7) Bail bond is effective until conviction by the RTC, nobody can take that away unless cancelled for valid reasons, it is a matter of right.

AS A MATTER OF RIGHT (Sec. 4) BEFORE Conviction by the MTC

AS A MATTER OF DISCRETION (Sec. 5) AFTER Conviction by the RTC on an offense not punishable by DRL RT and Below 6 years 1 day to 20 years But not six years and below. 

AFTER Conviction by the MTC pending appeal If after final judgment, no longer because he is already guilty. BEFORE Conviction by the RTC and the imposable penalty is not death, reclusion  perpetua, or life imprisonment [DRL] RT and Below BEFORE Conviction by the RTC for offense punishable by DRL but evidence of guilt is not strong. There must be a hearing, to determine whether the evidence of guilt is strong. AFTER Conviction by the RTC for offenses not punishable by DRL and six years and

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below. NOTE: Effectivity of bail ends upon  judgment of the RTC

SHALL BE DENIED (Sec. 7) BEFORE Conviction by RTC for offense punishable by DRL and the evidence of guilt is strong. AFTER Conviction by the RTC pending appeal for an offense punishable by DRL. No need to prove evidence of guilt is strong – already convict. AFTER Conviction by the RTC of an offense not punishable by DRL provided that the accused (if imprisonment punishable exceeds 6 years but no more than 20 years or RT and Below); 1. Is a recidivist, quasi-recidivist, habitual delinquent, under reiteration 2. Is an escapee, has evaded sentence, or has violated bail conditions without justification; 3. Has committed the offense under probation, parole or conditional pardon; 4. There is probability of flight 5. Undue risk that he will commit another crime while on bail. 

Provided that the accused (if imprisonment punishable exceeds 6 years but not more than 20 years): 1. NOT recidivist, quasi-recidivist, habitual delinquent, under reiteration; 2. NOT escapee, has evaded sentence, or has violated bail conditions without justification; 3. NOT commit the offense under probation, parole or conditional pardon 4. NO probability of flight 5. NO undue risk he will commit another crime while on bail. If any of these exists – the bail must be automatically denied, if none of these are present, the court can grant or deny. Remember: After conviction of RTC regardless of original action – the bail is no longer effective. That is why after conviction of RTC bail must be applied again – he should file upon appeal.   

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(Administrative Circular 12-94)

NOTE: If any of these are shown during trial by the prosecutor then bail should be denied.

RTC if not transmitted to CA/SB Once transmitted – CA/SB If decision RTC changes the nature of offense from non-bailable to bailable then CA/SB not to the RTC. The accused may be continued under the same bail with consent of the bondsman.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

 All persons in custody shall be admitted to bail as a matter of right,  with sufficient sureties, or released on recognize as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trail Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion erpetua , or life imprisonment.

WHEN BAIL IS A MATTER OF RIGHT 1. BEFORE conviction by the MTC; 2. AFTER conviction by the MTC pending appeal; 3. BEFORE conviction by the RTC and the imposable penalty for the offense is not: a. Death; b. Reclusion perpetua, or c. Life imprisonment; 4. BEFORE conviction by the RTC a. For an offense punishable by: i. Death ii. Reclusion perpetua, or iii. Life imprisonment b. But the evidence of guilt is not strong. Amendment of Law Al-Ghoul v. CA 299 SCRA 149 | November 24, 1998

Facts: Accused was charged with illegal possession of firearms and explosives. The imposable penalty for the offense was from RT to RP and his application for bail was denied on the ground that the evidence of guilt was strong. Later PD 1866 was amended by RA 8294 which lowered the penalty for the offense to PM to RT.

Issue: Should accused now be entitled to bail? Held: YES. Under Administrative Circular 12-94, bail is a matter of right before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment.

Q. What if the RTC erroneous grants bail? The CA motu proprio can review and reverse the decision or the offended party can file an appeal to the CA, questioning the grant by the RTC of the bail of the person, then the CA can be reverse the issue. Notice must be given.

Q. What if the RTC erroneous denies bail? Then the accused must appeal the decision of the RTC to the CA in order for the CA to review the validity of the grant of bail in such a manner that it will allow the reversal thereof.

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 Upon conviction by the Regional Trail Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other circumstances: That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstances of reiteration. That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; That he committed the offense while under probation, parole, or conditional pardon; That the circumstances of his case indicate the probability of flight if released on bail; or That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice notice to the adverse adverse party party in either case. case.

WHEN BAIL IS DISCRETIONARY 1. Upon conviction by the RTC of an offense not punishable by: a. Death, b. Reclusion perpetua, or c. Life imprisonment

2. Provided it is shown that: a. The accused i. Is NOT a recidivist; ii. Is NOT a quasi-recidivist; iii. Is NOT a habitual delinquent; or iv. Has NOT committed the crime aggravated by the circumstance of reiteration.

b. The accused has NOT: i. Escaped from legal confinement; ii. Evaded sentence, or iii. Violated the conditions of his bail without valid justification.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

c.

The accused did NOT commit the offense while under: i. Probation; ii. Parole; or iii. Conditional pardon

d. The circumstances of the accused’s case does NOT indicate the probability of flight if released on bail; or

e.

There is NO undue risk that the accused may commit another crime during the pendency of the appeal.

Effect when Bail is Discretionary and Accused Files a Notice of Appeal 1. The application for bail may be filed and acted upon by the RTC: a. If the original record has not yet been transmitted to the appellate court.

2. The application for bail can only be filed and resolved by the appellate court: a. If the decision of the RTC convicting the accused changed the nature if the offense from non-bailable to bailable.

Since Obosa was convicted of two counts of homicide, his bail application is subject to the sound discretion of the court.

SAN MIGUEL v. JUDGE MACEDA (2007) San Miguel was arrested with violation of RA 6425 punishable by PC he jumped bail. Judge issued bench warrant and fix the bail bond to P120K cancelling his P60K bail. State prosecutor filed motion to cancel for there was risk of evasion of trial. Judge argued that an information for murder  was  was filed 3 days earlier before the filing of the cancellation by the prosecutor. 

Bail is a matter of right in this case.  Eduardo was charged was charged of RA 6425 which was punishable by PC this was a matter of right. What about the murder information?  The  The court held that no, he was still entitled to bail but no longer as a matter of right instead it is discretionary  and calls for a judicial determination that the evidence of guilt is not strong.

Comment: Remember this case when the applicable law was RA 6425 wherein bail was still allowed in drug cases but under RA 9165 they are now non-bailable. Since penalty here is PC, it does not matter, the five circumstances, it does not matter, when it is a matter of right, it is a matter of right, it is punishable only be PC which is 6 months to 6 years.

3. If the proper court grants the application for bail: a. The accused may be allowed to continue on b.

provisional liberty during the pendency of the appeal under the same bail; However, this must be with the consent of the bondsman.

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CHUA v. CA AND CHIOK (2007) Chua filed complaint against Chiok before RTC. RTC set the promulgation but Chiok failed to appear. RTC convicted him of estafa and sentencing him for 12Y to 20Y. Prosecutor filed for cancellation of bail for he might flee or commit another crime. A Record Check Routing Form issued by BIR showing that he has Alien Cert. of Registration and Immigrant Residence Cert. and admitted that he used aliases. RTC issued an omnibus order cancelling his bail and giving him 5 days to appear, otherwise he would be arrest. RTC issued warrant of arrest pending appeal to the CA for the bail reconsideration. The warrant was returned unserved because he could not be found in his address. Argued that offense was non-capital offense. 

4. When it is the RTC which resolves the application for bail:

a.

b.

The appellate court may review the resolution of the RTC: i. Motu proprio ii. On motion of any party. Notice must be given to the adverse party.

Where Penalty Exceeds Six Years Obosa v. CA Obosa was charged with 2 counts of murder, a capital offense. He applied for bail but the judge proceeded with the trial without acting on his application. After trial, Obosa was convicted only of 2 counts of homicide, a non-capital offense. On appeal, is he entitled to bail as a matter of right? 

NO. Obosa filed for bail after the effectivity of the Administrative Circular No. 12-94. Under such, if the court imposed a penalty of imprisonment exceeding six years  but not more than 20 years then bail is a matter of discretion except when any of the circumstance under Section 5(3) of the Circular is present in which case bail has to be denied.

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Chiok has no right to be freed on bail . There is automatic denial of bail  and presence of one of the 5 circumstances above is a ground for cancellation of his bail. He failed to appear during promulgation which is required. Warrant was returned unserved because he could not be found at his given address. Indications of probability of flight (ACR and aliases). 

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Can the CA review the Order Cancelling Bail? YES. The CA can motu proprio or upon petition after notice to the adverse party in either case – the appropriate remedy was to file regular appeal proceedings to the CA.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

The special civil action he filed was unnecessary for it comes with the review – he must file a regular appeal proceeding with the CA which includes the review of RTC cancellation of bail. What was the basis of the denial of the bail?   He was convicted by the RTC of a crime punishable by 12Y which is between 6Y and 20Y and therefore bail is a matter of discretion but it was proven that he was a flight risk. In this circumstances, the bail here must be denied.

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of guilt was strong. When it is discretionary, it applies to Section 5 where the court has the option has to grant or deny. Once court determines the evidence of guilt is strong, bail should be denied. What happened here, there was a Demurrer to Evidence which is a motion to dismiss on the ground that the prosecution evidence is insufficient. The demurrer was filed, the original INF charged Plaza with murder – so evidence was presented. The demurrer was denied – but the judge continued the trial not for murder but now for homicide which is now bailable. If it was based on murder, then hearing shall be made. 

PEOPLE v. SB AND ESTRADA (2007) He was charged with crime of plunder (RP); he filed an application for bail, after bail hearing it was granted. Was the grant of bail valid? – YES. Even if the capital offense charged is bailable owing to the weakness of the evidence of guilt, the right to bail may  justifiably denied if the probability of escape is great. great. The grant of bail is not acquittal. The SB is still in the process of determining of the facts and merits – but in this stage the evidence was not found to be strong.

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The SC stated here that there is no need for hearing for there is already determination that it was only for homicide, for it is already a matter of right.

LEVISTE v. CA (2010)

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Comment:  If the penalty for the crime is RP, the bail is not automatically denied – there should be a hearing to determine whether or not evidence of guilt is strong.

Leviste was initially charged for murder but was convicted by RTC Makati of homicide appealed his conviction and filed an application for admission to bail citing his advanced age and health condition. Leviste questioned the denial of CA stating that none of the 5 circumstances are present. Does the absence of any of the circumstances warrant the automatic grant of bail? NO.

OCA v. JUDGE LORENZO (2008) They found smoking and manufacturing shabu, despite strong objection from prosecution, the accused were granted bail. Was the grant of bail proper? Filipino committed sniffing of shabu (RA 6425, S8) it was proper to grant bail was bailable. As to the Chinese committed manufacturing and possession of shabu which is life imprisonment, bail is a matter of right still when the evidence of guilt is not strong.

Two Scenarios 1. Absence of any circumstances – bail is a matter of

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2.

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There should have been a bail hearing, he preterminated bail hearing and the prosecution was not given the opportunity to prove that the evidence of guilt is strong. The judge should not grant bail right away if the prosecution is not given opportunity or else the state will be denied of due process.

sound judicial discretion then the appellate has the discretion to grant or deny bail. If there is one of any circumstances – contemplates the existence of at least one of the said circumstances – a more stringent discretion, to carefully ascertain whether any of the enumerated circumstances.

It cannot be said that the CA error in denying bail, for it has the sound discretion to either grant or deny the same. If none of the circumstances are present and punishable of 6Y-20Y, the bail is matter of discretion after conviction by RTC.

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PEOPLE v. PLAZA (2009) Plaza was charged with Murder, Judge Buyser’s Order stated that the evidence was for homicide. Jugde Tan (upon transfer) agreed that the evidence was only for Homicide. The brother argued that there was no hearing.

He was entitled to bail as a matter of right.  This was before conviction of RTC and homicide was RT. A summary hearing is not required because the evidence has already been presented. Summary hearing is brief and speedy method to determine the weight of evidence for the grant of bail.

Comment: SC used here when bail is discretionary in a sense that the court has the right to determine whether the evidence

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It is no longer a matter of right, a matter of discretion and if any of the circumstances are present, it shall be denied. This is a matter of proof . But still it is still under the discretion  of the court under Section 5.

What then is remedy of Leviste then?   He must appeal the possible grave abuse of discretion of CA, for CA can review the RTC discretion, more so the SC can review the discretion of the CA. But here Leviste insisted that it was a matter of right, no it was not. He should have asked for the CA to question whether it was wrong in denying the bail. 

SC stated the theory of the lawyer of Leviste reduced the CA as a fact-finding body.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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DIPATUAN v. JUDGE MANGOTARA Criminal case for murder against Dipatuan, the judge died, it was transferred to different judges, on December 2007, Judge Mangotara found them both guilty beyond reasonable doubt. Sentencing them both of RP, increasing bail bond. Whether or not it was to increase bail instead to cancel it. It is clear in Section 5, Rule 114 wherein when bail is discretionary, 

Commentary:  A situation after conviction in the RTC, what happens to his bail bond, because evidence was not found to be strong when he applied? Let’s say there is, then bail can be granted, what happened after RTC conviction? The bail loses its effectivity. There is already strong guilt. He should not have

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  A capital offense  which, under under the law existing at the time of its commission commission and of the application for admission to bail, may be punished with death.

Capital Offense It is an offense which may be punished by death: 1. At the time of tis commission; and 2. At the time of the application for admission to bail.

Is there still capital offense in the Philippines? Yes. Certainly we have offenses that are punishable by death ,

increased the amount of bail.

murder, it must be responsive to the question. There are still capital OFFENSES  even though imposition of the penalty of death is suspended.

When you analyze, you have to make sure the stage of the proceedings, when is bail being applied for.

Evidence of Mitigating Circumstance Q. In determining whether the offense is capital, may the court

QUI v. PEOPLE (2012) Qui was charged under RA 7610. OSG argued that Qui is a flight risk and propensity to evade the law for he failed to attend hearings in the RTC. The CA denied her application on the basis of bail. Whether or not Qui can be granted bail?

Bail negating conditions  – tough on bail pending appeal, Qui indeed did not attend the hearings in the RTC and transferred residence without informing her bondsman.

PEOPLE v. PIAD (2016) Four people were charged with violation RA 9165. All of them were judged to be guilty by the RTC and that conviction was affirmed by CA. In the SC, the BOC informed SC that Mr. Davis was not kept in any facility. Mr. Davis appeared in court nonetheless no warrant arrest or commit order against him. The OSG should have immediately cancelled the bail bond. So, Whether Davis is entitled to bail? The court ruled that it is a matter of right that before conviction – the crime was only punishable by reclusion temporal. The moment he violated the conditions of his bail, his bail is already cancelled.  The bail should be denied the moment the person fails to comply with the conditions. The RTC should have immediately order the arrest of Mr. Davis, there was no record of him being kept in the detention facility. 

Comment: When a person out on bail, violates the condition of his bail bond, where will you find the conditions – Section 2. Then, the bail bond under Section 5, that violation of conditions will cause the cancellation of his bail bond. Even though it is a matter of right, Section 5 applies when bail is discretionary. The bail filed before RTC is cancelled if any of these circumstances. 

But when he violate conditions of bail even though matter of right, it shall be cancelled. Even though bail is a right, it is a

take consideration the presence of mitigating and aggravating circumstances?

NO.  An offense is capital if it may be punished by death under both the law prevailing at time of its commission and that prevailing at the time of application for bail, even if after conviction less than death penalty is imposed. The criterion to determine whether the offense charged is capital is the PENALTY PROVIDED BY LAW regardless of the

attendant circumstances. Rationale of provision lies in the difficulty and impracticability of determining the nature of the offense on the basis of the penalty actually imposable. Otherwise, the test will require consideration not only of evidence showing commission of the crime but also evidence of the circumstances. Thus, there has to be not only a complete trial, but the trial court must also render a decision in the case. This defeats the purpose of bail, which is to entitle the accused to provisional liberty pending trial (People v. IAC, 1987).

Evidence of Minority (Bravo v. Borja, Jr., 1985) Q. Where the accused who is charged with a capital offense is a minor, is he entitled to bail as a matter of right even if the evidence of guilt is strong?

YES. Where it has been established without objection that accused is a minor, it follows that if convicted he would be given “the penalty lower than that prescribed by law,” which effectively rules out death penalty. The Constitution withholds the guaranty of bail from one who is accused of a capital offense where the evidence of guilt is strong. The obvious reason is that one who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be a minor who by law cannot be sentenced to death (Bravo v. Borja, Jr. , 1985).

waivable right by violating the conditions. From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

NOTE: It is clearly obvious that he will be given the penalty next lower and if there is no objection then it shall be appreciated.

 No person charged with a capital offense, or an offense punishable by reclusion perpetua, or life imprisonment, shall be admitted to bail when the evidence of guilt is strong, regardless of the stage of the criminal prosecution.

WHEN BAIL SHALL BE DENIED 1. BEFORE conviction by the RTC: a. Of an offense punishable by: i. Death ii. Reclusion perpetua; or iii. Life imprisonment b. The evidence of guilt is strong. 2. AFTER conviction by the RTC, pending appeal, of an offense punishable by: a. Death b. Reclusion perpetua c. Life imprisonment 3. AFTER conviction by the RTC of an offense with an imposable penalty of imprisonment of more than 6  years  but not exceeding 20 years, and it is shown that:

a.

The accused: i. Is a recidivist; ii. Is a quasi-recidivist; iii. Is a habitual delinquent; iv. Has committed crime aggravated by the circumstances of reiteration.

b. The accused has: i. Escaped from legal confinement; ii. Evaded sentence, or iii. Violated the conditions of his bail without valid justification;

c.

The accused committed the offense while under: i. Probation ii. Parole, or iii. Conditional pardon

d. The circumstances of the accused’s case indicates the probability of flight if released on bail; or

e.

There is undue risk that the accused may commit another crime during the pendency of the appeal.

Challenging of Order Granting Bail Q. Where the court erroneously allows an accused charged with a capital offense to post bail, may its order be challenged by

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certiorari  anytime considering that the Rules provide that no person charged with a capital offense shall b e admitted to bail regardless of the stage of the criminal prosecution?

NO, it is true that Rule 114, Section 7 of the Rules of Court provide that an accused charged with a capital offense is not entitled to bail at any time during trail when the evidence of guilt is strong. It does not mean however that since the accused is not entitled to bail at any stage of the trial, a grant thereof can be questioned any time and without the regard to the period of filing provided by the Rules. An order of granting bail is interlocutory and when it is issued with grave abuse of discretion a special civil action is can be considered as an appropriate remedy. However Rule 65, Section 4 prescribes a period of 60 days to file a special civil action for certiorari (Pobre v. CA, 2005).

Bail while Conviction is on Appeal Padilla v. CA 260 SCRA 155 | July 31, 1996 Accused was convicted by RTC of violation of PD 1866 and sentenced to an indeterminate penalty of 17 years and 4 months and 1 day of reclusion temporal to 21 years of reclusion  perpetua. He appealed to the CA, but judgment was rendered affirming his conviction. Is accused entitled to bail pending review of his conviction by the Supreme Court?

NO.  If an accused who is charged with a crime punishable by reclusion perpetua is convicted by the trial court and sentenced to suffer such a penalty, bail is neither a matter of right on the part of the accused nor of discretion on the part of the court. In this case, the accused was convicted of a crime punishable by reclusion perpetua. Therefore, the Court finds accused not entitled to bail as his conviction clearly imports that the evidence of guilt is strong. Indeed, the extensive trial before the RTC and the appeal before the CA are more than sufficient in accomplishing the purpose for which a summary hearing for bail application is designed.

PEOPLE v. RICHARD HU (2005) Can Richard Hu apply for bail as a matter of right? - NO Section 7 Rule 114 provides that no person charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment shall be admitted to bail when evidence of guilt is strong  regardless of the stage of the criminal prosecution. RTC judge shall evaluate within 10 days from filing of complaint or information, the resolution of the prosecutor and the supporting evidence, if there is probable cause, he shall issue a warrant of arrest or commitment order.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

If the accused is charged with an offense punishable by death, reclusion perpetua or life imprisonment, the judge should not grant bail for his provisional release regardless of whether or

not the prosecutor recommends bail under the Circular. If the accused has been brought under custody of the court, he may file a petition for bail for his provisional liberty. If, after the requisite hearing, the court finds that the evidence of the accused is strong; the petition shall be denied, and accused will remain under the custody of the court.

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This should refer to prescribed not imposable penalty. The complex crime RT to RP. The imposable penalty. The SB intended the prescribed penalty  the word used is punishable which carries the same meaning prescribed.

Comment: Remember under Criminal Law, in special complex crimes which are named and numbered with their own penalties. In this case, the one with the higher penalty will apply. However, this is the prescribed penalty which is applied before conviction . But after conviction, and the penalty imposed is RP; what is then the basis the RP after conviction , here the evidence of guilt is already strong. 

However, if the evidence of the guilt of the accused is not strong, the petition shall be granted and the accused discharged upon approval of the bail bond, in such amount fixed by the court takin into consideration the guidelines set forth in Section 9, Rule 114.

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Before conviction – prescribed penalty After conviction – penalty imposed

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In this case, no conviction yet.

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This is an EN BANC case, this can be doctrine.

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In this case: Respondent was charged with qualified theft of P762K   and in People v. Canales,   the Court ruled that the penalty for qualified theft under Article 40 of the RPC taking into account the value of the property stolen is reclusion  perpetua with the accessory penalty of death,  with no possibility of pardon before the lapse of forty years. Since the imposable penalty for the felony charged is reclusion perpetua, the respondent was not entitled to bail as a matter of right. Hence, the RTC was correct in rejecting the recommended amount of bail of P40K and ordering the issuance of warrants for the arrest of Richard Hu.

ENRILE v. SANDIGANBAYAN (2015) Enrile was charged with plunder in the SB involving the PDAF, the filed a motion to Fix Bail. Enrile has three arguments: 1. The prosecution not established guilt is strong; 2. Penalty RT (by virtue of mitigating circumstances) 3. Not a flight risk and his age and physical condition must be seriously considered.

SB: Only after prosecution shall have presented evidence and the court made determination only when court is duty bound to fix the amount of bail. SB stated it was premature, he did not file for application.

VALERIO v. CA Milagros claims that she is entitled to bail because evidence of guilt against her is strong. The SC ruled that no. The SC said that the trial court ignored the glaring fact that the killer confessed the crime and implicated Milagros as mastermind, making her a possible principal by inducement.

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The contention of mitigating circumstances are not covered. The age and condition are considered, but he did not file the proper motion.

He is entitled to bail.  For purposes for admission of bail, the Comment: This is an illustration when bail should be denied, there was a plea of guilty by the killer and implicating that she was a principal by inducement.

determination of evidence of guilt being strong, there must be a hearing for bail (there was none). 

Unfortunately, since this is a influential person, Jun Valerio, when it reached the Supreme Court it took account of the circumstances. Clearly, the evidence of guilt was strong. 

PEOPLE v. VALDEZ (2011) Luzviminda was former mayor and was alleged to the altered and falsified cash slips amounting to P279K. OMB recommended no bail, the charge constituting the complex crime was the penalty of RP. Was the complex crime a nonbailable offense?

The court is guided by the principle by the purpose of bail, which is to guarantee the appearance of the accused at the trial or whenever required by court. The Court is mindful in the national commitment under the Universal Declaration of Human Rights

Two Requisites: 1. Detainee will not be flight risk; 2. There exists, special humanitarian and compelling circumstances.

Two Requisites are Present No.  When committed through falsification of official/public documents, the RPC does intend to classify malversation as a capital offense, otherwise It should have been included under RA 7659 which gives the list of capital offense.

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He immediately for surrendered This showed utter respect for the legal processes of the country Solid reputation in both his public and his private life Fragile health conditions.

“Punishable” From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial.

Comment: Here, the court did not really strictly based in the rule. Decisions of the court are collegial.

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1. Upon motion of either party; 2. Unless the witness to be called is: a. Dead b. Outside the Philippines, or c. Otherwise unable to testify Commentary: The accused is in upper hand here, the burden of proof in the prosecution. This is a summary hearing, a hearing is more like an informal conversation, it is not a full blown trial. A hearing to determine whether to determine if guilt is strong is MANDATORY.

PEOPLE v. SOBREPENA (2016) Sobrepena was charged for Estafa and Large Scale Illegal Recruitment. Is he entitled for bail? NO. The court’s grant or refusal of bail, what contain a summary of evidence of the prosecution on the basis of judgment whether such evidence is strong enough to indicate the guilt of the accused.

Even if the prosecutor r ecommended bail, the prosecutor must still prove or try to prove that the evidence of guilt is strong which is quite contrary. What is discretionary is only when the determination whether the evidence of guilt is strong. The bail hearing is mandatory – always. 

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The findings and assessment of the trial during the bail hearing were only a preliminary appraisal of the strength of the evidence for the limited purpose of determining whether they are entitled to be released on bail during pendency.

Comment:  Here there was a summary hearing to determine whether or not the evidence guilt of strong. There was no conviction yet, in a summary hearing there is no need to prove guilt. When the CA ruled that the RTC committed grave abuse of discretion, the People went to the SC, and SC went back to the RTC ruling to deny bail.  At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.

PROCEDURE AND REQUIREMENT IN THE APPLICATION FOR BAIL 1. An application for bail is filed by a person who is in custody for the commission of an offense punishable by death, reclusion  perpetua, or life imprisonment;

2. There must be a hearing to determine as to whether or not the evidence of guilt is strong;

3. The burden is one the prosecution to prove that the evidence of guilt is strong.

4. The evidence being presented during bail hearing shall be considered automatically reproduced at the trial, but

5. The court may recall any witness for additional examination

BASCO v. JUDGE RAPATALO (1997) In the light of the applicable rules on bail and the  jurisprudential principles just enunciated, this Court reiterates the duties of the trial judge in case an application for bail is filed: (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended); (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, supra); (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, supra); (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Section 19, supra). Otherwise, petition should be denied.

GACAL v. INFANTE (2011) Judge Infante relying solely   on the recommendation of bail granted such. Atty. Gacal was private prosecutor filed MR to cancel bail bond and filed for inhibition of Infante for his failure to resolve for he was too dependent on the public prosecutor’s comment considering that the resolution was under discretion was no necessary. Judge argued that no need for hearing, for there was no hearing. 

Is hearing before grant of bail necessary? YES. It is mandatory before grant of bail whether bail is matter of right or a matter of discretion, especially if it involves a capital offense, reclusion perpetua or life imprisonment. The case involved here murder with a penalty of RP, therefore murder is considered a capital offense by reason of penalty imposed by law. The hearing here is indispensable.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Is bail hearing dispensable when accused did not file for application? NO Even where there is no petition for bail. This hearing is separate and distinct from the initial hearing to determine the existence of probable cause. The prosecution must be given the chance. The recommendation is not material in deciding whether the mandatory hearing is to be conducted or not. The recommendation is not binding. 

Comment: Sometimes the prosecution goes beyond its authority, it only files information after PI. The prosecution recommended for bail despite the fact it was murder (RP) thus, there is should be a hearing. Whether matter of right or discretion there must be a hearing. If only a matter of right what happens only is the fixing the amount where the accused can ask for a lower amount. If matter of discretion, if he does not apply then it is considered waived. 

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GACAD v. JUDGE CLAPIS (2012) Judge Clapis was charged with gross ignorance of law. It was alleged that judge set hearing for a petition for pail, accused here filed a petition for bail only on April 8, 2010. The hearing was on March 29, 2010. Judge Clapis calendared a continuous hearing for bail from April 12-14, 2010. On May 18, 2010, Clapis granted petition of bail. He is liable

for conducting bail hearings without a petition p etition for bail filed for the accused without affording the prosecution an opportunity to prove that the guilt of the accused is strong. 1. An application for bail filed 2. Judge notified prosecution and conducted bail hearing It was only on April 8 when accused filed application but on March 29 there was already hearing. During the April 12 hearing Gacad appeared herself for the private counsel filed a motion to withdraw. However, the hearing proceeded with accused alone. It was only the last day on April 14 she was represented by a private prosecutor. 

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Clearly the prosecution was not given the opportunity to prove the evidence of guilt of strong. While there may be a hearing, there was no inquiry, due process requires that the prosecution must be given the opportunity to present within a reasonable period all the evidence it may desire to produce before the court should resolve the Motion for Bail.

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The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors: (a) Financial ability of the accused to give bail; (b) Nature and circumstance of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e)  Age and health of the accused; accused; (f)  Weight of the evidence against the accused; accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from  justice when arrested; and (j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required.

GUIDELINES IN THE AMOUNT OF BAIL TANOG v. JUDGE BALINDONG (2015) Sidic filed motion to fix bail; the bail bond was fixed P30K, the evidence guilt was no strong, RTC ordered City Warden to release accused. The prosecution objected. Was the bail amount the reasonable amount of the bail? NO. t is settled that the amount of bail should be reasonable at all times. In implementing this mandate, regard should be taken of the prisoner's pecuniary circumstances. We point out that what is reasonable bail to a man of wealth may be unreasonable to a poor man charged with a like offense. Thus, the right to bail should not be rendered nugatory by requiring a sum that is relatively excessive. The amount should be high enough to assure the presence of the defendant when required, but no higher than is reasonably calculated to fulfill this purpose.

Comment: There is no fixed amount. In fixing the amount of bail, the judge is given the discretion to set an amount which he or she perceives as appropriate under given circumstances in relation to the factors enumerated under Section 9 of Rule 114. As quoted above, Judge Balindong enumerated the reasons (i.e., accused's incarceration for more than 4 years; his reputation as a former councilor; his financial ability; and the weak evidence against him) why he set the amount of bail at P30,000.00.

BALANAY v. JUDGE WHITE (2016) A complaint against judge for gross ignorance of the law, for he granted furloughs despite murder being non-bailable. Adamas was a public official. Judge White granted motion of Adamas. Judge White also explained that she granted Adamas six furloughs based on affidavits of desistance.

Bail hearing is necessary. A hearing for a petition for bail is

Commentary: En banc case, per curiam, there was a setting of

required in order for the court consider the guidelines set forth in fixing the amount of bail.

a hearing right away even before the application and then during the hearing, the prosecution was not able to present.

Comment: In other words, six furloughs were not allowed. If you look at Section 3, one furlough – allowed, upon order of the court. What is the procedure? The PAO lawyer will apply to

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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the court for an order for the temporary release for the accused to attend burial for a few hours – not in the rules but is being done. But here, Adamas was a municipal councilor, who was detained for murder – he wanted to attend session. He should ask for bail. Furloughs are not allowed. This is a circumvention of bail grant. Six furloughs is definitely not allowed.  

 Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by its board of directors.

Requisites for Providing a Bail Bond in the Form of a Corporate Security 1. It must be provided by a domestic or foreign corporation which is: a. Licensed as a surety, and b. Authorized to act as a surety.

2. It must be: a. Jointly subscribed by; i. The accused, and ii. An officer of the corporation b. Authorized by its board of directors Commentary: Not just any corporation, there are requisites to be followed. The accused must sign the bond so as the authorized officer as well as the BOD.   A property bond is an undertaking constituted as a lien on the real property given as security for the amount of the bail.  Within ten (10) days after the approval of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Registry of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefore, in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned.  Within the same period, the accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention.

Property Bond, Definition It is an undertaking constituted as a lien on the real property given as security for the amount of the bail. The accused need not be the owner of the property that will be offered as the property bond. The owner of the property is the property bondsmen – it can be a corporation or a natural person who is the registered owner of the property. Even unregistered property can be considered as subject for a property. Note that the accused must compliance – that he will cause the annotation of the

lien on title of property or tax declaration.

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Procedure Within ten (10) days after the approval of the bail bond: 1. The accused shall cause the annotation of the lien: a. On the certificate of title on file; i. If the land is registered with the Registry of Deeds, or ii. If unregistered – in the Registration Book on the space provided therefor, in the Registry of Deed for the province or city where the land lies. b. On the corresponding tax declaration in the office of the provincial, city or municipal assessor concerned.

2. The accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for: a. The cancellation of his property bond, and b. His rearrest and detention.

The qualifications of sureties in a property bond shall be as follows: (a) Each must be a resident owner of real estate  within the Philippines; (b)  Where there is only one surety, his real estate must be worth at least the amount of undertaking; (c) If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded. In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution.

Sureties of Property Bond Qualification: Must be a resident owner of real estate within the Philippines. It must be in the Philippines, it cannot be personal property it must be a real property, it must be real estate or a lot as long as it is considered as real property. Personal property are not considered as a property bond under bail for such.

Value of the Property of Surety 1. If there is only one surety – his real estate must be 2.

worth at least the amount of the undertaking If there are two or more sureties – each may justify an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded

Every surety must be worth the amount specified in his own undertaking over and above all: 1. Just debts 2. Obligations; and 3. Properties exempt from execution

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

 Every surety shall  justify by affidavit taken before the judge that he possesses the qualification prescribed in the preceding section. He shall describe the property given as security, stating the nature of his title, its encumbrances, the number and amount of other bails entered into by him and still undischarged, and his other liabilities. The court may examine the sureties upon oath concerning their sufficiency in such manner as i t may deem proper. No bail shall be approved unless the surety is qualified.

Justification of Sureties

NOTE: In truth and in fact, this is being deposited in the clerk of courts, thus the scandal in the loss cash bonds.

How much shall be deposited 1. The amount of bail fixed by the court; or 2. The amount recommended by the prosecutor who investigated or filed the case.

When Accused Shall be Discharged from Custody Upon Submission Of: 1. A proper certificate of deposit, and 2. A written undertaking showing compliance with the

1. Obligations of a surety: 1. 2.

He must justify by affidavit taken before the judge that he possess the qualifications prescribed in Section 12. He must describe the property given as security stating; a. The nature of his title; b. The encumbrances c. The number and amount of other bails entered into by him and still undischarged; and d. His other liabilities

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requirement of Section 2 (conditions of bail)

What Happens to the Money Deposited 1. It shall be considered as bail; 2. It shall be applied to the payment of fine and costs 3. The excess, if any, shall be returned; a. To the accused, whether convicted or b.

acquitted, or To whoever made the deposit.

their sufficiency in such a manner as it may deem proper.

In Victory Liner v. Bellosillo  425 SCRA 79 (2004), the court ruled that the judge compelling the conversion of surety bond to cash bond, in a way requiring the latter, is wrong because the option to deposit cash in lieu of a surety bond primarily belongs to the accused.

3. No bail shall be approved unless the surety is qualified.

Q.  May a judge be held administratively liable for personally

2. This court may examine the sureties upon oath concerning

accepting the cash bond of an accused?

Commentary:  He must submit an affidavit to show he is qualified and disclose how many bails to be entered by him, because some people make this as a business.  The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance  with the requirements of of section 2 of this Rule, Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit.

Cash Bond as Bail Who may Deposit the Cash Bond: 1. The accused; or 2. Any person acting in his behalf  Commentary: Most of the time it is not the accused who will

YES. Rules specify person with whom a cash bail bond may be deposited, namely (1) collector of internal revenue or (2) the provincial, city, or municipal treasurer. A judge is not authorized to receive the deposit of cash as bail nor should such cash be kept in his office (Lachica v. Tormis,  2005). 

It is the right of the accused to decide what kind of bail bond to apply person.

 Whenever allowed by law or these Rules, the court may release a person in custody on his own recognizance or that of a responsible person.

RECOGNIZANCE What is recognizance? An obligation of record, entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial.

deposit their cash bond, it is their counsel. The accused cannot do this personally most of the time.

When may person in custody be released on recognizance: 1. Whenever allowed by law, or 2. Whenever allowed by these rules

Where the cash bond may be deposited: 1. The nearest collector of internal revenue, or (BIR) 2. Provincial, city or municipal treasurer

In whose recognizance may a person be released: 1. On his own, or 2. On that of a responsible person.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

When may a person be r eleased on recognizance? The release on recognizance of any person under detention may be ordered only by a court and only in the following cases: (a) When the offense charged is for violation of an ordinance, a light felony, or a criminal offense, the imposable penalty for which does not exceed 6 months imprisonment and/or P2000 fine, under the circumstances provided in RA 6036; (b) Where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of ISL or any modifying circumstance, in which case the court, in its discretion may allow his release on his own recognizance (Rule 114, Section 16);

(c) Where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one; and (Rule 114, Section 24) – here the he must be released under the recognizance of a responsible person not on his own.

(d) In case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under circumstances envisaged in PD 603 as amended (Espiritu v. Jovellanos,  1997).

(e) RA 7610, Section 25,  rights of children under armed conflict either as combatant, courier or spy under (d) release on recognizance under DWSD or responsible member of community. If under examination, trial, or appeal, to the DSWD or to the local rehab center, or with recommendation of DSWD to the parents or responsible persons provided that they will furnish his presence whenever so required.

TABAO v. JUDGE BARATAMAN (2002) Rasmia Tabao was the private complainant for abandonment of minor, Judge Barataman granting bail on recognizance under RA 6036. Tabao avers that Judge Barataman committed grave abuse of discretion granting such. Was this valid? 

NO. The granting was a clear violation of RA 6036, the law allows release of recognizance if he is unable to post the required cash or bail bond. The accused here is CPA, but the law did not distinguish. But even if he was not able to pay the cash or bail bond, the sworn statement was signed by the father not the accused itself, here it was not the accused which is a violation under the rules. The custodian cannot assume this requirement. It was erroneous for it was the father filed. The accused here was at large, it is basic principle that bail cannot

be granted cannot be granted before custody has been acquired thus it has been premature. Comment: Someone else can post the bail bond, the accused need not personally appear and post the bail bond. But it is required that the accused is in the custody of the law.  In this case, he was at large, the father merely went on his behalf. Even if the crime is under RA 6036 it is not that easy to file for bail for recognizance. Section 1 requires that he is unable to afford.

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ATTY. CABRERA v. ZERNA (2002) Cabrera filed for misconduct, alleging that Zerna was wrong for granting recognizance of Wahab and Saro without giving the prosecution the opportunity to oppose. And that it was wrong to grant such without recommendation of DSWD and merely relied on the birth certificates of the two.

It was not proper.  The objective of recognizance is sparing accused from imprisonment but secure his appearance at the trial of a pending criminal case. There is a requirement of hearing and he must be notified. Zerna did not give opportunity to be heard. The basis here was that under Section 191 of PD 603 for bail recognizance because they were minors which requires the recommendation of DSWD or agencies authorized by court before releasing under recognizance. So, before release: 1. Proper recommendation from the DSWD or 2. Other agencies authorized by the Court. This is indispensable, otherwise the youthful offender will be confined in a separate confinement in the provincial or city jail. Clearly, Zerna did not obtain recommendation of DSWD.

Commentary: When bail is applied, there must be a hearing, recognizance is still a kind of bail. During hearing, cite the law for basis of recognizance, and requirements of the law must be complied with – here the recommendation is required under Sec. 191 of PD 603.

 No bail shall be required when the law or these Rules so provide.  When a person has been in custody custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.  A person in custody for a period period equal to or more more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court.

When Bail is Not Required 1. When provided by law, or 2. When provided by these Rules NOTE:  There are laws that do not require imprisonment like when it only imposes fine.

When a person in custody shall be released 1. When he has been in custody for a period (without prejudice to the continuation of the trial or the proceedings on appeal):

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

a. b.

Equal to possible maximum imprisonment prescribed for the offense charged, or More than the possible maximum imprisonment prescribed for the offense charged.

NOTE:  That even if the person is released for reaching the maximum period of imposable penalty, the trial must still continue to determine whether or not the accused is guilty of the crime charged. Thus, even if there is release for he has reached the maximum period. There is still a requirement to continue the proceedings in the court for it is important to determine the guilt of the accused.

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  (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof,  with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, of if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein.

2. If the maximum penalty to which he may be s entenced

(b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal [AM 05-8-26, August 30, 2005].

to is destierro: He shall be released after 30 days from preventive imprisonment

(c) Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held.

3. If he has been in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, (without application of the Indeterminate Sentence Law or any modifying circumstance): He shall be released on a reduced bail or on his own recognizance, at the discretion of the court

When the accused is exempt putting up bail 1. RA 6036: When the offense has an imposable penalty 2. 3.

4.

of 6 months or less under the conditions mentioned therein; Rule 114, Section 16:  When a case is filed under the Summary Rules, a mere notice is sufficient, a warrant of arrest is not required; Rule 112, Section 9(b): If the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest In summary rules, the accused need not be arrested so there is no need to arrest, thus there is no bail to be considered.

Q. May a judge be held administratively liable for ordering the arrest of accused and requiring bail in a case for malicious mischief which carries a penalty or arresto mayor? 

YES.  RA 6036 provides that bail is not generally required for violation of municipal or city ordinances or for criminal offenses when the prescribed penalty is not higher than arresto mayor  and/or  and/or a fine of P2000 or both. In a charge of simple malicious mischief which is covered by the Rule on Summary Procedure, bail is no longer necessary, unless accused fails to appear whenever required (Martinez v. Paguio, 2002).

Where Petition for Bail is Filed General Rule: With the court where the case is pending Exceptions: The petition may be filed 1. With any RTC or MTC judge in the province, city, or 2. 3.

municipality – when the judge where the case is pending is absent or unavailable With the RTC of the place where the accused is arrested – if arrested in a place other than were the case is pending. With the MTC of the place where the accused is arrested – of RTC judge of the place where he is arrested is not available.

Q. What if arrested in Kidapawan but committed crime in Davao and a case is already filed? Section 17 provides it may also be filed to the RTC, the mother can go to the Judge Carpio or to the RTC Kidapawan or any RTC judge. Suppose it was an MTC crime, still she has to go to the RTC in Kidapawan. Only when there is no RTC judge available and only MTC judges are left – this is the only time the mother can go to the MTC judge in Kidapawan. 

When bail can ONLY be granted in court where the case is pending (whether or trial or on appeal) 1. When the grant is a matter of discretion, and 2. When accused seeks to be released on recognizance When the person in custody is NOT yet charged in court The petition may be filed with any court in the province, city or municipality where he is held (this applies to inquest ). ). Any court: this applies to inquest proceedings where a person is arrested without warrant, and he does not want to spend a night in jail, so where can he apply? Again any court, so if he was arrested in Kidapawan, but committed in Davao, it is to get out of detention right away. 

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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PURITA LIM v. JUDGE DUMLAO (2005) Lim here filed two criminal cases against Medina. Lim charged Dumlao with Gross Ignorance of the Law and Grave Abuse of Authority for the release of Medina on bail. There was allegation for the judge frequently approves bail bonds for cases filed in other cases outside his territorial jurisdiction. Judge Dumlao erred in approving the bail and issuing the order. He is expected to know that certain requirements is required to be complied. The petition for bail is filed generally to the court where case is pending. It is not disputed that the criminal cases was filed pending for RTC Santiago and warrant of arrest of the presiding judge of the court, the order of release of bail should have been issued by the court, or in her absence any other. On the day Dumlao ordered release of Medina – RTC judges were present.

Comment:  It must be filed because of the involve of the prosecutor, the circumstances must be checked the records shall be considered.

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file her bail bond in RTC San Fernando Pampanga where her case in pending, in her absence, other RTC of Pampanga or San Fernando City. She voluntarily applied for place in RTC Bulacan, it could have been allowed if she was arrested there. But she cannot go there if she was not arrested there. It is not allowed,

only when she is arrested. Judge Bartolome also failed to require submission of the supporting documents needed in the application for a bond without the certificate od detention and warrant of arrest. So even if she had authority there is still violation of Section 19.

RE: ANONYMOUS LETTER (2010) There was an anonymous letter sent then CJ Davide from a concerned citizen requested for an investigation against Judge Tamang, judge MeTC in Pateros and Acting Presiding Judge of MeTC Manila. There was fake bonds. The OCA found out that 34 of the accused were attained, 7 in San Juan, 6 in San Juan and 1 is in accused. She was MeTC Judge of Pateros and Acting MeTC of San Juan, all of these cases were pending in RTC Pasig.

SAVELLA v. JUDGE INES (2007) Criminal complaint was filed by Savella against Ibaez, a warrant of arrest was not immediately served for Ibaez was in USA. Later on Ibaez was not found in Ilocos Sur. Judge Ines was the presiding judge of MTC Ilocos Sur, ordered provisional release. Savella (MTC Vigan) stated the MTC Sinait did not forward the bail bond papers and avers that Ines was highly irregular in giving undue favor and illegal accommodated. She claims that she forgot to transmit the bail bond papers to MTCC Vigan to forward. Judge Ines failed to property apply bail rules.

1. There is violation of Section 17. The case against Ibaez was filed before MTC Vigan president by Judge Ante. No showing of his unavailability – then it should be in MTC Vigan or in absence thereof, any Regional Trial Judge of the province. a. Case was pending in MTC Vigan, what if Judge Ante is not around, where can he file? b. The application for bail was filed in MTC Sinait which was still wrong court. c. It should have been any court in Vigan.

2. Even if Ines correctly granted she failed to transmit the order of release and other supporting papers to the court. Judge Ines failed to transmit the records to the bail immediately after she received the same.

JUDGE SIMBULAN v. JUDGE BARTOLOME (2009) Simbulan accused Judge Bartolome of MTC Sta Maria Bulacan for the case was originally filed in her court in RTC S an Fernando Pampanga. RTC received an order that the accused surrendered in MTC Sta Maria and she posted her bail bond there and it was approved there. It was found later by Deputy Court Administrator that the accused was never arrested.

No compliance of Section 17 and 19.  The accused Mercado was not arrested thus the proper procedure was to

Judge Tamang was allowing fake bonds from a surety that was blacklisted by the SC. Can she approve bail bonds outside her territorial jurisdiction. Judge Tamang argued that the 3 voluntary surrenders that they can file in San Juan. And those in Taguig for she was the Pairing Judge in MeTC of Taguig. Court said as a judge in San Juan she was correct for such, however she did not substantiate her explanation why she approved the bail application of the accused in Pasig Accused and had issued the corresponding release orders after office hours. Court found it anomalous and worked until 9PM, it was shown that there are RTC Judges in Pasig.

Comment: Here she was a judge in three courts, where she was able to grant bail bonds, but in Pasig, where cases are pending, she was not able substantially prove the case.

PANTILO v. JUDGE CANOY (2003) Pantilo, brother of homicide victim, when inquired in CPO, the details surrounding the release of Melgazo and that no information has been filed and no written Order release was issued only verbal. Judge Canoy invokes the right of accused to bail and that a constructive bail given that only the papers were needed to formalize it. Can a judge verbally grant bail without the application?

NO. Section 17. Melgazo did not file any application or petition for the grant of bail with the Surigao RTC despite absence of written application, Judge Canoy verbally granted bail to Melgazo. There is no such species of bail of constructive bail. There must be an application for bail.  The  judge cannot cannot just arbitrarily grant grant bail – worse a verbal bail, they did not even deposit amount of bail in the CIR or the treasurer. The clerk was made to accept.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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There was no even signing of the written undertaking, it is either the accused nor even the bondsman. 1. No application 2. No certificate of deposit 3. No written undertaking 4. No written release order, it is not allowed for verbal release, there is no constructive bail.

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Therefore, whether bail is a matter of right or discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail, the  judge is required to take in to to account account a number of factors factors (Ruiz v. Beldia, 2005).

TOREVILLAS v. JUDGE NAVIDAD (2009) TORMIS v. JUDGE PAREDES (2015) Judge Paredes (RTC Cebu), Tormis alleged that he received a bail bond in a case for he accepted a bail bond of P6000 for the release of Guioguio which was pending in MTCC Cebu City. Judge Paredes admitted that he personally accepted that cash bail bond on a Sunday. He claimed that his act was in accordance with Section 14, Chapter 5 of AM 03-8-02-SC.

Judge Paredes was justified for the approval, as well as the receipt of the cash bail bond as it was in accordance with Section 14, Chapter 4 of AM 03-8-62  which allowed the executive judges to act on petitions for bail and other urgent matters on Saturdays, or Sundays. Judge Paredes acted in accordance with the AM, that should the accused deposit cash bail, the executive judge shall acknowledge receipt of the cash bail bond in writing and issue a temporary receipt therefore. Judge Paredes was merely exercising incidental to his function as Executive Judge for he was the only available judge – the Executive Judge of Cebu.

Comment: There is nothing in Rule 114 that gives accused the right to apply for bail for holidays and Sundays. The thing to do is to look for the Executive Judge as provided under the AM 038-02, Section 14, Chapter 5. Now it is possible for those who arrested to apply for bail so they can be released immediately, it must be made before the executive judge of the case where the case is pending.

Provincial Prosecutor brought attention to CJ Davide the actions of Judge Navidad in handling of the bail he handled. In Criminal Cases it was alleged that the accused were charged of capital offense and Judge Navidad granted bail without hearing, There were also other criminal cases involving murder but also released accused even if it involved murder even without the requisite hearing.

YES. There was violation , the court must give notice of hearing or recommendation of the matter, this task was ignored by the judge. The grant or denial of bail hinges on the determination of strength of guilt, and in order for the judge to exercise this correctly, there must be a hearing, and even if there is no petition for bail, hearing must be done. Judge Navidad was clearly in violation of the rule.   The accused must be discharged upon approval of the bail by the judge with  whom it was filed in accordance with Section 17 of this Rule.  When bail is filed with with a court other other than where the the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending, which may, for good reason, require a different one to be filed.

Procedure for Release on Bail 1. The accused can only be discharged upon approval of the bail by the judge with whom the petition was filed.

2. When the motion for bail is filed with a court other  In the application for bail under Section 8 of this Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation.

What the Court must do when it receives an application for bail under Section 8 1. It must give reasonable notice of the hearing to the prosecutor, or

2. It must require the prosecutor to submit his recommendation

Notice Where Bail is a Matter of Right The prosecutor should be notified of the application. A hearing on an application for bail is mandatory. Bail should be fixed according to the circumstances of each case. The amount fixed should be sufficient to ensure the presence the accused at the trial yet reasonable enough to comply with the constitutional provision that bail should not be excessive.

than where the case is pending: a. The judge who accepted the bail shall forward it, to the court where the case is pending. b. He must include the order of release and other supporting papers, and c. The court where the case is pending may, for good reason, required a different bail to be filed.   After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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Increase or Reduction of Bail A. After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount;

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If the accused fails to appear in person as required: 1. His bail shall be declared forfeited, and 2. The bondsmen are given 30 days within which: a. To produce their principal, and b. To show cause why no judgment should be

B. When increased the accused may be committed to custody

rendered against them for the amount of their bail.

if he does not give bail in the increased amount or within a reasonable period;

NOTE: Even if “forfeited” the bail is still there but subject to the C. An accused held to answer a criminal charge who is released without bail upon filing of the complaint or information, may: 1. At any subsequent stage of the proceedings, and whenever a strong showing of guilt appears to the court, 2. Be required to give bail i n the amount fixed, or in lieu thereof, committed to custody.

CONQUILLA v. BERNARDO (2011) Conquilla charged Judge Bernardo with usurpation of authority, grave misconduct and gross ignorance of the law. Judge Bernardo conduct PI and recommended bail. Judge issued order reducing P12K to P6K. Conquilla filed complaint alleging that under AM 05-08-26-SC, first level judges no longer have authority to conduct PI, and that he committed conducting PI and issuing Warrant of Arrest.

30 day period given by the rules to perform obligation.

Within the 30 day period, the bondsmen must: 1. Produce the body of their principal or give the reason 2.

for his non-production; and Explain why the accused did not appear before the court when first required to do so.

Effect of failure of bondsmen to comply with the above requisites: 1. A judgement shall be rendered against the bondsmen,  jointly and severally for the amount amount of bail; and 2. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused: a. Has been surrendered; or b. Is acquitted.

Not correct. Judges are allowed to grant bail, increase

Q. What are the two occasions  upon which the trial court may

or decrease bail but assumes that the judge has jurisdiction over the case. In this case, Judge Bernardo conducted the PI without authority and issued warrant.

rule adversely against the bondsman in cases when the accused fails to appear in court?

COMMENT: This was adjudged when judges were stripped off of authority to conduct; no jurisdiction over the case.  When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within  which to produce their principal and to show why no  judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must: (a) produce the body of their principal or give the reason for his non-production; and (b) explain why the accused did not appear before the court when first required to do so. Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or i s acquitted.

FORFEITURE OF BAIL When the presence of the accused is required by the court or these Rules His bondsmen shall be notified to produce him before the court on a given date and time.

(1) The non-appearance by accused is cause for the  judge to summarily declare his bond as forfeited; and (2) the bondsman, after the summary forfeiture of the bond, are given 30 days within which to produce the principal and to show cause why a judgment should not be rendered against them for the amount of the bond. It is only after this 30-day period, during which the bondsman is afforded the opportunity to be heard by the court, that the trial court may rendered a judgement on the bond against against the bondsman. Judgment against the bondsman cannot be entered unless such judgment is preceded by the order of forfeiture and an opportunity given to the bondsman to produce the accused or to adduce satisfactory reason for their inability to do so ( Reliance Surety v. Amante,  2005).

Failure of counsel to Appear for Trial Q. May the judge order the forfeiture of bail and the detention of accused for the failure of his counsel to appear during trial?

NO. Nowhere in Rule 114 does such a ground exist. Under Section 2, the presence of counsel is not a condition  of the bail, neither is it a reason for increase or forfeiture of such (Andres v. Beltran, 2001).

Appeal of Judgment Against Bond Q. Is the judgment against the bondsman on the bond subject to appeal?

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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The judgment against bondsmen on bond may be construed as a final order, hence subject to appeal. Indeed, from a  judgment on the bond, a writ of execution may immediately issue, and need not be effected through a separate action. An appeal from a judgment on the bond is allowed in the Rules.

TALAG v. JUDGE REYES Information of Estafa against Talag in RTC Manila, Judge Reyes issued a warrant of arrest, Judge Reyes set the case for arraignment, the order never reached him for it was sent to his old address despite giving notice of change of address. Arraignment was reset, now the notice was still sent to the wrong address – thus he was not able to appear thus bail was confiscated in view of the failure to appear. Judge Reyes stated that Produce Orders were given, but bondsmen failed despite the extension.

The confiscation was proper.   The produce orders

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CANCELLATION OF BAIL Two Ways of Cancellation 1. By application 2. Automatic cancellation Requisites of Cancellation of Bail 1. An application for cancellation must be filed by the 2. 3.

bondsmen Due notice must be given to the prosecutor, and The bail may be cancelled upon: a. Surrender of the accused ,or b. Proof of his death

When Bail Shall Be Deemed Automatically Cancelled 1. Upon acquittal of the accused 2. Upon dismissal of the case, or 3. Upon execution of the judgment of conviction.

were sent to his bondsman, whom failed to produce him, his bondsman should have produce him failure resulted to the forfeiture of the bail. The bail bond was correctly cancelled.

Effect of cancellation:   It shall be without prejudice to any

Comment: Forfeited – is a technical term, an announcement

Arrest for Another Crime

that the bond is forfeited but nothing is yet done, after the bondsmen given 30 days and failed, and that is the time bond will be confiscated. (Note the use of words).

MENDOZA v. ALARMA (2008) Sps. Alarma were owners of land for property bond for Mayo charged with illegal possession of firearms, Mayo failed to appear, the confiscation was made. A writ of execution was made without a judgment against the bondsmen being rendered and the land was eventually sold in public auction. WON writ of execution may issue based on the order of forfeiture. NO.

liability on the bail. The bail shall be returned.

Esteban v. Alhambra 437 SCRA 560 (2004) Anita put up a bail bond of P80,000 for accused in 4 criminal cases. While out on bail, accused committed another another crime, was arrested and detained so that Anita filed a motion to cancel the cash bond she posted. The judge denied motion on theory that the accused was not surrendered by Anita but was arrested for another crime, and that the cash bond is to be applied as payment for fine and consist.

Q. Is the court correct in refusing to cancel cash bond? An order of forfeiture is interlocutory  and merely requires bondmen to show judgment. While judgment on the bond is made after failure within 30 days. “Order of Forfeiture” The proper procedure was for judge to render  judgment, but this was not followed, there was no 

 judgment of the bond, thus the writ of execution is null and void.

YES. Rule 114, Section 22 contemplates of a situation where, among others, the surety or bondsman surrenders the accused. Anita did not surrender the accused, charged in 4 criminal cases, to the trial court. The accused was arrested and detained because he was charged in a subsequent criminal case. In addition, the bail bond was a cash deposit which under Section 14, shall be applied to the payment of fine and costs and the excess be returned.

Comment: Under Rule 39, there can be no execution if there is no judgment, what happened here is a shortcut, there was an execution without a judgment on the bond, if not followed everything after that will become a nullity.

Escape of Accused to a Foreign Country Q.  May an explanation given by a bondsman within a

 Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death.

reasonable period that a principal left the country surreptitiously and was denied in a foreign jurisdiction for the commission of a different offense in said jurisdiction be considered as substantial compliance of the duty imposed upon the bondsman sufficient to exonerate from liability?

The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail.

NO.  To justify exemption, the accused must be surrendered to the court and his non-appearance when first required must be explained. It could have taken steps to have prevented the departure. As the jailer or custodian of the accused its obligation to produce the body of the accused

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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whenever so required, failure to do so is a violation of the condition of the bond (People v. Caparas,  1988).

Act of God, of Government or of Law In Phil. Phoenix v. Sandiganbayan (1987), the surety, upon application to the trial court may also be relieved from the nonappearance of the bond where its performances rendered impossible by the (1) act of God, the (2) act of the obligee (Government) or (3) the act of law.

BONGCAC v. SB (2009) Bongcac filed petitions in the SB which decision become final and executory on April 2, 2002. SB iss ued resolution dismissing both petitioner and moved for execution and ordered cancellation of the cash bond.

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ARREST OF ACCUSED OUT ON BAIL Who may execute the arrest for the purpose of surrendering the accused: 1. The bondsmen, or 2. Upon written authority endorsed on a certified copy of the undertaking, the bondsmen may cause him to be arrested by a. Police officer, or b. Any other person of suitable age and discretion

When accused released on bail may be re-arrested without the necessity of a warrant: If he attempts to depart from the Philippines without permission of the court where the case is pending.

The cancellation was proper.  One of the grounds for automatic cancellation is the execution of judgment of conviction, it was ministerial on the part of SB   for the cancellation of the cash bond.

Comment:  Like in Mendoza v. Alarma, what happened was that Alarma without their knowledge and consent of bondsmen, they did not know that it was their responsibility to secure, they may execute the arrest.

PEOPLE v. CAWALING (2009) Wilfredo Cawaling was charged with murder, RTC convicted him of homicide, CA charged murder. Cawaling jumped bail, what involved here was a property bond, Cruz filed a manifestation and withdraw a property bond and in lieu thereof a cash bond. Can it be cancelled?

NO.  The cancellation of bail is upon application of bondsmen, it is only cancelled only upon surrender or death or those grounds of automatic cancellation. Due to his flight, the bond cannot be cancelled, unless he is surrendered to the Court or proof of his death. Cawaling here fled, thus the judgment of conviction cannot be cancelled. Comment: What is the effect of the accused jumping his bail bond? The bondsman obviously cannot produce him. The bond cannot be cancelled because he jumped him, so she cannot replace the property bond with the cash bond. The effect of Cawaling jumping bail or violation of conditions of bail, the bail will be there until he is arrested, and after he is arrested then that is the time the bail bond can be cancelled. Judgment against the bond , it will not help the People in finding the accused.

Any person out on bail, must ask permission from the court where the case is pending, otherwise he can be arrested without a warrant.

Right to Travel 1. Prohibition by Sandiganbayan Q. May a person who is out on bail be prohibited by the court from leaving the country?

YES.  A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. The condition stated under Rule 114 r equired that the accused be available at all times is a valid restriction of the right to travel (Santiago v. Vasquez,  1993).

2. Prohibition by MTC Q.  May a MTC judge issued a hold departure in criminal cases pending before it?



NO. Circular No. 39-97 provides that hold departure

Have the accused arrested, detain him, and then the bond can be cancelled.

orders shall be issued only in criminal cases within the exclusive  jurisdiction of the RTCs (Mondejar v. Buban, 2001).

In this case, the property bondsmen, she cannot cancel it yet. This forfeiture of the bond and judgment against the bond, is the punishment for the bondsmen but not punishment for the accused.

NOTE: But if he attempts to depart, no court is prohibited from issuing a warrant to arrest him.



  For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. An accused released on bail may be re-arrested  without the necessity of a warrant if he attempts attempts to depart from the Philippines without permission of the court  where the case is pending.

 No  No bail shall be allowed after a judgment of conviction has become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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BAIL AFTER FINAL JUDGMENT OF CONVICTION A. After Final Judgment of Conviction 1. General Rule: Bail is NOT allowed 2. Exceptions: If before such finality, the accused applies for probation: a. He may be allowed temporary liberty under b.

his bail ,or The court may allow his release on recognizance to the custody of a responsible member of the community: i. When no bail was filed, or ii. When the accused is incapable of filing one

B. After the Accused Has Commenced to Serve Sentence Bail is not allowed.  The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention. The executive judges of the Regional Trial Courts shall conduct monthly personal inspections of provincial, city, and municipal jails and the prisoners within their respective  jurisdictions. They shall ascertain the number of detainees, inquire on their proper accommodation and health and examine the condition of the jail facilities. They shall order the segregation of sexes and of minors from adults, ensure the observance of the right of detainees to confer privately with counsel, and strive to eliminate conditions inimical to the detainees. In cities and municipalities to be specified by the Supreme Court, the municipal trial judges or municipal circuit trial  judges shall conduct monthly personal inspections of the municipal jails in their respective municipalities and submit a report to the executive judge of the Regional Trial Court having jurisdiction therein.  A monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state the total number of detainees, the names of those held for more than thirty (30) days, the duration of detention, the crime charged, the status of the case, the cause for detention, and other pertinent information.

COURT SUPERVISION OF DETAINEES A. The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention;

B. The executive judges of the RTCs shall: 1. Conduct monthly personal inspections of provincial, 2. 3. 4. 5. 6.

city, and municipal jails and the prisoners within their respective jurisdictions, Ascertain the number of detainees, Inquire on their proper accommodations and health, Examine the condition of the jail facilities, Order the segregation of sexes and of minors from adults, Ensure observance of the right of detainees to confer privately with counsel, and

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7. Strive to eliminate conditions inimical to the detainees C. In cities and municipalities to be specified by the Supreme Court, the MTC judges shall: 1. Conduct monthly personal inspection of the municipal  jails in their respective municipalities, municipalities, and 2. Submit a report to the executive judge of the RTC having jurisdiction therein.

D. A monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state: 1. The total number of detainees, 2. The names of those held for more than 30 days, 3. The duration of detention, 4. The crime charged, 5. The status of the case, 6. The cause for detention, and 7. Other pertinent information.

An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case.

EFFECT ON ILLEGAL ARREST A. Effect of Application or Admission to Bail B ail – It shall not bar the accused from: 1. Challenging: a. The validity of his arrest, or b. The legality of the warrant issued therefor; 2.

or Assailing the regularity of or questioning the absence of a PI of the charged against him (provided he raises them before he enters his plea).

B. Requisite for accused to be entitled to the above: He must raise them before entering his plea.

C. When the court shall resolve the matter or whether or not to grant bail: As early as practicable but not later than the start of the trial of the case.

Comment: Up to what point can he question illegality of arrest or warrant up to the point of arraignment, now even if he applies for bail, he can still question such illegality.

Admission to Bail Before Arraignment Q. Whether or not the accused should first be arraigned before hearings on his petition for bail may be conducted?

NO. The arraignment of an accused is not prerequisite to the conduct of hearing on his petition for bail.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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A person is allowed to file petitioner for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender (Serapio v. Sandiganbayan , 2003).

Effect of Bail on Right to Preliminary Investigation Q.  Is the filing of a bail bond a waiver   of the right to a preliminary investigation?

NO. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a PI of the charge against him provided that he raises such before entering his plea (Yusop v. Sandiganbayan,  2001).

Effect of Bail on Question of Legality of Arrest In Okabe v. Gutierrez  (2004),  (2004), the posting of bail bond by the accused for her personal liberty did not waive her right to question the court’s finding of probable cause for her arrest.

Petition for Bail and Motion to Quash Q uash Q. May an accused file a motion to quash during the pendency of his petition for bail?

YES. No inconsistency exists between an application of an accused for bail and is filing of a motion to quash. These two reliefs have objectives which are not necessarily antithetical to each other (Serapio v. Sandiganbayan,  2003).\ CONQUILLA v. BERNARDO (2011) Pena field Complaint for submitted falsified documents. Arrest warrants were issued against, upon the issuance of the warrant of arrest, Borlongan et al. immediately posted bail. They questioned the validity, the trial court ruled that the posting of bail is waiver. Is this correct? Can they still question validity of warrant of arrest?

YES. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legally of the warrant issued.

Was there a waiver due to arraignment? The principle that the accused is precluded only applies when the accused voluntarily enters his plea and participates during trial. It was shown that their bonds contained a stipulation that they were not waiving their right, it was the court who entered the plea for them.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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RULE 115 RIGHTS OF THE ACCUSED In all criminal prosecutions, the accused shall be entitled to the f ollowing rights:

Rights of the Accused It talks about the right of the accused at the trial, in Constitutional Law, this particular rule focuses on the right of the accused at the trial.

Elements of Due Process 1. There must be a court or tribunal clothed with judicial 2. 3. 4.

authority to hear and determine the matter before it; Jurisdiction must be lawfully acquired over the person of the defendant or property which is the subject of the proceeding; The defendant must be given an opportunity to be heard; and Judgment must be rendered upon lawful hearing.  Aguirre v. People, 2001). ( Aguirre

To be presumed innocent until the contrary is proved beyond reasonable doubt.

1. PRESUMPTION OF INNOCENCE This is a right given to all accused. So, in other words, the prosecution has the burden of proven the guilt of the accused beyond reasonable doubt. These defense lawyers, all they have to do is create a doubt in order to have their clients acquitted. In drugs cases, the defense lawyers will just find a way to chain of custody which is required under RA 9165, once there is a small break or cut in the chain of possession there is a doubt. There was this, Order, from an informant telling PDEA that X will buy shabu at a time in place. PDEA were supposed to act as  poseur-buyers, when there is a buy bust operation, there is an Order. What happened was, they kept on testifying that the buy bust took place around 10:30 – 11:30 PM. All of their testimonies now in the morning. In the Order,  the time was 1300H, it was changed to 1000H to make it 10 in the morning, thus the Order was made after the conduct of buy bust or “to follow” which was not the proper order thus a break, even though it was not connected to the guilt or accused, but due to this failure to follow to the procedure, the accused was acquitted. This presumption of innocence is powerful  as an accused in court, it is not easy to convict, but accused however are detained, that is why we have bail but for those who cannot afford and offenses are not bailable they have suffer in prison. Like in the case of Custodio, who was charged for rape by a married lady, who hitched with him. And so, he was charged and the lawyer was Dean Inigo and it was so hard to find a

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favorable bail for all was denied – he was in jail for eight years until he was acquitted. There was no rape. What is the point of being presumed innocent if you are incarcerated but you are not allowed outside? It is always the prosecution that presents evidence first, the accused only has to rebut presented. In relation to right to presumed innocent which is Demurrer to Evidence   due to insufficiency of the evidence of the prosecution. However this presumption is merely a presumption, once there is proof of guilt beyond reasonable doubt the presumption is destroyed, thus a judgment of finding the accused guilty. 

Cannot be waived unless he pleads guilty, which will kill the presumption.

Prima Facie Presumption of Guilt In Hizon v. CA,  PD 704 provided that the discovery of explosives or obnoxious substance in any fishing boat shall constitute a presumption that the owner or operator was fishing with the use of explosive or poisonous substance. Is this a violation of the constitutional presumption of innocence?

No.  The legislature has the power to provide that proof of certain facts can constitute a  prima facie  evidence of guilt provided that there is a rational connection between the fact proved and the fact presumed. PD 704 creates a presumption of guilt based on facts proved and is not constitutionally impermissible. However, statutory presumption can only be prima facie  it can be rebutted.

Equipoise Rule This rule is applied when the evidence by the prosecution and the accused are of equal weight, under this rule, the party having the burden of proof loses. This means that the evidence does not fulfill the test of moral certainty  and does not provide Dado v. People,  2002). a sufficient ground for conviction ( Dado To be informed of the nature and cause of the accusation against him.

2. RIGHT TO BE INFORMED OF NATURE AND CAUSE OF ACCUSATION That is why we have Rule 110 for an information to be sufficient in form and substance for it will inform the accused. Under Rule 116, Section 1 the information will be read to him in a language he understands thus this right will not be violated, so that if there is nobody in the court room who can read the information for him? What happens? One has to find someone to interpret for the accused. When we took Rule 112, we did not encounter a provision that the information be given to the accused, because this is not yet the time, the proper time is during the arraignment, but lawyers already get the information from the court, which there is nothing wrong with that.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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Can this right to be informed be waived? NO. This cannot be waived, the information must be read to him. Why public interest is involved in this right so that no person shall be deprived of his life or liberty.

Jurisprudential Doctrines In People v. Atienza  (2000), an accused charged with rape through one mode of commission may convicted of the crime if the evidence shows another mode of commission provided that the accused did not object to such evidence.

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Effect when absence of the accused without justifiable cause at the trial of which he had notice: It shall be considered as a waiver of his right to be present thereat.

Effect when an accused under custody escapes: He shall be deemed to have waived his right to be present in all subsequent trial dates until custody over him is regained.

B. Right to Counsel During Trial In People v. Ortega  (2000), an accused cannot be convicted of homicide through drowning in an information that charges murder by means of stabbing. In People v. Lucas (1994), the failure to object to the time of commission even if it appears that the crime was not committed in the precise time or place alleged can lead to a possible conviction. In People v. Antido  (1997), when the information charges an accused with one count of rape, he cannot be convicted with two counts even if he failed to object to the testimony. In People v. Legaspi  (1995) when the accused is charged with two separate information, one for double murder and one for carnapping an accused cannot be convicted with special complex crime of robbery with double homicide To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without  justifiable cause at at the trial of of which he had notice shall shall be considered a waiver of his right to be present thereat.  When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.

Right of the Accused:   To be defended by counsel at every stage of the proceeding from arraignment to promulgation of  judgment.

Waiver of said right:  The accused, upon motion, may be allowed to defend in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.

Right of the Accused to be Present at the Trial This particular right has many parts: 1. To be present at his trial, he also has the right not to be there for there are only times he required (1) arraignment (2) identification and (3) promulgation. 2. To defend in person but he also has the right to counsel from arraignment until promulgation Arraignment is a very important stage, the right of counsel in the arraignment is mandatory. He cannot just plea without the advice of the lawyer. 3. To defend by counsel at every proceeding. This right is waivable. The accused can represent himself if he is capable.  

Right to be Present Although it is a right, it is waivable and therefore he does not have to attend every trial date. There are three: 1. Arraignment 2. When required by the court for purposes for identification 3. Promulgation of judgment

2. RIGHT TO BE PRESENT AND RIGHT TO COUNSEL A. Right of the Accused to be Present at his Trial Rights of the accused to be present at every stage of the proceedings, from arraignment to promulgation of judgment:

General Rule: The accused may waive his right to be present at the trial pursuant to the stipulations set forth in his bail

Exceptions: The accused has to appear: 1. When is presence is specifically ordered by the court 2. 3.

for purposes of identification; During arraignment; and During promulgation of judgment.

Now, this talks about two situation where the accused does not attend that trial, when required to do so; 1. Absence without justifiable cause is a waiver to be present thereat, mere presence. He is either detained or out on bail, perhaps he was not informed or he was sick. If required like arraignment, he cannot waive right to be present, because arraignment required to be personally enter his plea. If it for identification, he cannot waive that, what about promulgation. What is actually waived is being absent on a particular date. If he is absent on this particular date. Whatever such required it must be moved. There is no negative consequence on the accused.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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2.

He is detained and escapes, or he is out on bail and he disappears, he shall be deemed to have waived his presence in subsequent dates until custody over him is regained. He can no longer participate on the next trial.

What does this mean? When he goes, custody over him will be regained, but meanwhile the lawyer cannot participate unlike (1) the lawyer can still participate on his behalf. In this instance, the lawyer cannot present on his behalf, and a judgment can be rendered against him. This is related in trial in absentia.

Trial in Absentia Applies to both, that the trial will go on without him if he is not there, the elements are: 1. Court acquired jurisdiction over person of accused; 2. He has already been arraigned 3. Notified of the trial 4. Non-appearance of the accused is unjustified In other words, this provision applies when the accused is already arraigned and he is absent, he waives his right to be present thereat, despite being notified.

Effect of Failure to Appear in One Trial Date  , an accused on bail In Crisostomo v. Sandiganbayan  (2005) , who fails to appear for a particular trial date does not necessarily amount to a waiver of appearance for the subsequent trial dates. It is only when an accused under custody has been notified of the date and escapes or jumps bail who shall be deemed to have waived right to subsequent trials dates until custody is regained.

The Right to Counsel During Trial This is different from custodial investigation. Both times, CI and Trial the accused has the right to counsel, is this right waivable? YES in both instances. In CI, he can waive this right of counsel in presence of counsel; In trial, the only requirement is that the waiver is clear, intelligent and competent. 

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It means that the accused does not desire a lawyer as the accused wants to defend for himself. What about the offended party? Can the offended argue that he must be prosecute? No, he can ask the public prosecutor to include the civil liability. It is only the accused who can waive

Due Notification

his right of counsel.

How can the prosecution establish that he is notified? How can one say his appearance is unjustified.

Non-appearance of Counsel

People v. Abgulos If one is fugitive he is deemed to waived notice because of escape, it is this escape results to the failure to appear. If he escapes or jumps bail, duly notified rule is no longer important. The notification process is deemed waived, his escape is nonappearance is unjustified. Even if his absence, the trial will continue. Once established, that he has escaped, he is no longer allowed to present evidence. Trial in absentia really refers to the second instance. For the first instance, the lawyer can participate, but in the second instance the lawyer cannot even participate.

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In People v. Diaz (1999), the accused was denied due process when the successive non-appearance of his counsel was construed as a waiver of his right to present evidence. In People v. Larranaga (2004), the judge did not violate the right of the accused to counsel where a counsel de oficio was appointed during the absence of counsel de parte of accused.

Q. Where an accused who is represented by counsel de parte appear for trial without his lawyer, is it incumbent upon the trial  judge to appoint a counsel de oficio for him?

In Gimenez v. Nazareno,   the court need not wait that the accused decides to appear in court, to allow this delay would be to violate constitutional rule in trial in absentia. By his failure to appear, he virtually waives his rights to confrontation and cross-examination of witnesses, the right to present evidence on his behalf, so an escape can be considered as an waiver.

NO. In Sayson v. People (1988), the duty of the court to appoint a counsel de oficio when the accused has no counsel of choice is mandatory only at the time of arraignment. This is no longer so where the accused has proceeded with arraignment and the trial with a counsel of his choice but when the time for the presentation of evidence for the defense he appears by himself alone and absence of counsel was inexcusable. At most, appointment of a counsel de oficio during trial is now discretionary with the trial court.

Q. If accused is convicted in trial in absentia, what happens to

NOTE: In People v. Liwanag  (2001), the right to counsel does

the presumption of innocence and of due process?

not include the guarantee of the right to an intelligent counsel. The requirement for the counsel is not to be intelligent but to be effective.

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No violation.   He is still presumed innocent, the prosecution still has to prove, but due to his waiver he cannot disprove.

Defending One’ Self

Due process is the giving of opportunity to be heard, he was given opportunity, there was trial for him, but he threw away all those rights by escaping or jumping bail.

In People v. Sesbreno   (1999), accused here acted his own counsel for he himself is a prominent and competent member of the bar, even if there were others available, thus he is estopped in claiming such violation of right to counsel. to counsel.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.

4. RIGHT TO TESTIFY IN HIS OWN BEHALF Right Guaranteed:   The accused has the right to testify as a

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direct examination (deemed as a waiver of his right against selfincrimination).

Effect of Silence on Part of the Accused: It shall not in any matter prejudice him.

Comments: This is subject to cross-examination on matters covered by direct examination. Now, so if I am the accused and I want to be my own witness, normally I will be presented by my lawyer as the witness during presentation of evidence by the defense. If I want to be placed in the witness stand, I open myself to cross-examine to the prosecutor. This is waivable. He has the right to refuse to be put in the witness stand this is against self-incrimination.

Two Kinds of Cross-Examination 1. Rule 115, Section 1(d) Meaning, the prosecution can only cross examine as to matters stated in the direct examination. So example in estafa, “what is your relationship to complainant?” “She is my employer” “What happened?” “She asked me to deposit money to the bank and husband took the money from me”. So if I am cross-examined only going to the bank, taking of the money of the husband. This is with limited cross-examination, this is the American Rule.

2. Rule 132, Section 6 Cross-examine as to any matter stated in the direct or connected therewith, with a broader scope it includes fullness and freedom to explore. Can this be done to an accused as witness against himself? NO. This only applies to the witnesses who are not the accused. This is the English Rule which is broader. What if he does not want to testify on his own behalf? What if he does not want to answer? His silence will not prejudice him, it cannot be taken against him.  (General Rule)

People v. Delmendo  (1998); his silence can be taken against when the crime is serious, and his testimony might help him but would show that the testimony would be inimical to himself. (Exception)

To be exempted from being compelled to be a witness against himself.

witness in his own behalf.

Condition for the Exercise of Such Right: He can be cross-examined   on matters covered by

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5. RIGHT AGAINST SELF-INCRIMINATION In Villaflor v. Summers (1920), The constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination. On a proper showing and under an order of the trial court, an ocular inspection of the body of the accused is permissible. Not only to testimonial consumption but includes production of documents and things that will incriminate him. He is not required or forced to speak against himself. It does not include the mechanical acts. Handwriting or signature – this is not mechanical. 

How do you waive this right? 

By taking the witness stand and freely answering question propounded and not objecting.

Rationale:  On the ground of public policy, because if he required to testify, he is tempted to commit perjury, he would be forced to lie and humanity to prevent duress.

Jurisprudential Doctrines  , the taking of hair strands did not In People v. Rondero  (1999) , violate such right for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from him under duress.

In People v. Yatar (2004), it was ruled that the testing of the sperm specimen from the vagina of the victim which was identified to be that of the gene type of the accused did not violate the right against self-incrimination. To be clear, the prohibition is not against all compulsion, a person may be compelled fingerprinting, photographing, paraffin, blood an DNA tests as long as there is no testimonial compulsion involved. It was also noted in this case that the accused submitted himself for blood sampling that was conducted in open court in the presence of counsel. In People v. Besonia (2004), the admission of accused was not violative of such right because there is nothing in the records that would indicate that the accused was forced, intimidated or compelled by the trial court or by anybody to admit crimes. At any rate, his plea of guilty and confession or admissions during the search inquiry cannot be the sole basis for his conviction in this case.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to crossexamine him.

6. RIGHT TO CONFRONTATION Right guaranteed: The accused has the right to confront and

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“Either party may utilize testimony of … ” Let’s say, there is this criminal case against the accused and it is estafa. Now, the witness is dead. So, what happens to this right to confront the witness? What if before criminal case, there was a civil case for collection by victim against accused and was able to present evidence and present Witness X, where he was cross-examined. And then, the prosecution filed an INF for estafa against accused, the collection case is suspended, in the meantime, Witness X died, so can the prosecution use the testimony of Witness X in the criminal case? 

cross-examine the witnesses against him at the trial.

Addition benefit granted Sec. 1(f) Either party may use as evidence testimony of a witness who is not present during trial, provided: 1. Said witness is: a. Deceased, b. Out of or can not with due diligence be found in the Philippines; c. Unavailable; or d. Otherwise unable to testify; and 2. Said testimony was given by the witness in another case or proceeding: a. Judicial or administrative; and b. Involving the same parties or subject matter; and 3. The adverse party had the opportunity to crossexamine said witness.

Purpose of Right to Confrontation 1. Secure opportunity of cross-examination; and 2. Allow the judge to observe the deportment and appearance of witness while testifying. (People v. Ortiz-Miyake, 1997).

Right to Confrontation Includes Cross-Examination This happens when there is a witness presented by the prosecution. For example, Witness X, witness of the crime, asking questions, Witness X has testified the narration. This right contains of the lawyer the accused to cross-examine

against him. In relation to Section 1(c) on Right to be Present Let us say Witness X is being presented, and then he is actually supposed to identify the accused, but accused is not around despite he was arraigned but he did not appear. So, the prosecution presented a video, and the witness pointed at the accused in the video. The lawyer of the accused was in court, can he cross-examine the witness? Yes, he can. He just waives his presence during that day, the lawyer is not deprived. 

Another situation, Here we have the witness, on the day of the trial, the City Jail reported that accused escape. Can his lawyer still cross-examine? No.  This right to cross-examine is waivable, by escaping and jumping bail he waives his right.

YES.  It involves same parties and subject matter, and the accused was given the opportunity to cross-examine. It need not be done in the criminal case,   whether civil or administrative case as long as same parties and same cause. It is only if the witness is dead, or cannot with due diligence be

found in the Philippines, unavailable to testify. General Rule: Witness must testify. 

The right to confront and cross-examine does not include the right to know their names and addresses in advance. The case of the prosecution might be in danger, the confrontation right given is during the trial.

Jurisprudential Doctrines In People v. Santos (1985), the court ruled that the right was violated when the RTC convicted accused of murder based mainly on an affidavit which affiant did not testify during trial. In People v. Narca (1997), where the death of witness prevents the cross-examination, to strike out what has obtained in the direct examination, when the accused himself moved for the deferment of the cross-examination  is not permissible. What the right grants is the opportunity and not actual cross examination thus losing such opportunity when he sought for the deferment he has only himself to blame. In People v. Digno, Jr.   (1995), when a witness for the prosecution has not be cross-examined for her testimony, it should be the counsel who should move and has the burden of ensuring her cross-examination for some other time. In People v. Nadera (2000), the decision of the counsel not to cross-examine the victim due to manifest lack of enthusiasm for his client’s cause amounts to a violation of the right to confrontation of the accused.

Testimony in Preliminary Investigation Q. May the testimony of a witness taken during PI be used in evidence against the accused where said witness died before he could testify at the trial?

YES. The testimonies given by witnesses during PI can be admitted as evidence when such testimony was taken by question and answer in the presence of defendant or his attorney and there was opportunity for cross-examine the witness who is now dead (De Leon v. People, 1992).

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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To have compulsory process issued to secure the attendance of witness and production of other evidence in his behalf.

7. COMPULSORY PROCESS TO SECURE WITNESSES AND EVIDENCE FOR HIS BEHALF (SUBPOENA) Right to Compulsory Process The accused has the right to compulsory process, meaning that the witness he wants to present can be forced to attend by means of subpoena. He can also compel people to bring evidence to help him in his trial. Now there is a 100km  limit to compel witnesses to attend, if the witness resides more than, he cannot forced to attend trial – this does not apply to criminal cases, even if the witness is in Baguio, he can be compelled because of this right.

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In Re: Request TV/Radio Coverage of Plunder Case  (June 29, 2001), the request of the KBP to allow live media coverage of the trial of Former President Estrada was denied on the ground that the rights of the accused is preferred over the free press because a television coverage can impair the performance of the judge and can destroy case of accused in the eyes of public. In the Reconsideration  (September 13, 2001), the court still denied the request for coverage but emphasized that the audio visual recording be preserved but it will not be for live broadcast but for documentary purposes. Only later will they be available for public showing after SB promulgate decision.

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Requisites (People v. Chua,  2001). (a) That the evidence is really material; (b) That he is not guilty of neglect in previously obtaining the production of such evidence; (c) That the evidence will be available at the time desired; (d) That no similar evidence could be obtained. To have speedy, impartial and public trial.

8. SPEEDY, IMPARTIAL AND PUBLIC TRIAL This is a definite constitutional right. The judge must be impartial. It must be public, it is better so that everyone will see what is going on.

A. Speedy Trial The right to speedy trial is deemed violated only when the proceedings are attended by vexatious, capricious and oppressive delays or when unjustified postponements of the trial are asked for and secured.

C. Public Trial Publicity of the trial is necessary to prevent abuses that may be committed by the court to the prejudice of the defendant. It suffices to be considered public trial as long as the door of the court are open for the public to come in. These rights belong to the accused and can be waived.

Exceptions: 1. Trial of cases involving child abuse; 2. Trial of cases involving rape To be exempted from being compelled to be a witness against himself.

9. RIGHT TO APPEAL The right to appeal is not a constitutional right , this is a statutory right and the party who seeks to avail of it must faithfully comply with the rules ( People v. de la Concha,  2002). The right to appeal is only the first appeal. The first appeal is a notice of appeal you are notifying the court that you are appealing its decision. A second appeal is now a petition for review. In first appeal, the court has no choice.

Factors Considered in Yulo v. People 452 SCRA 705, 2005 1. The length of the delay; 2. The reasons for such delay; 3. The assertion or failure to assert such right by the 4.

accused; The prejudice caused by the delay.

B. Impartial Trial In People v. Sanchez (1999), the intensive publicity of a trial does not violate the right to a fair trial. Intensive publicity is not  per se  prejudicial for it does not prove that the publicity so permeated to the mind of judge impaired his impartiality. There must be actual prejudice and proof is required. In Estrada v. Desierto (2001), even though there was pre-trial publicity and hate campaign was present, the mere fact that the proceeding was given a day to day coverage does not prove that the publicity so permeated the mind of the tribunal and its impartiality, the test of actual prejudice  cannot be replaced with the rule of res ipsa loquitur. Thus, the media coverage does not necessary violate the right to impartial trial. From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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RULE 116  ARRAIGNMENT AND PLEA

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Commentary:  It must be the particular branch and must be made in the open court. The court will ask him if he has no lawyer, then the plea is not yet given or declared.

Arraignment

Is the arraignment waivable?

Arraignment is the formal mode and manner of implementing the constitutional right of an accused to be informed of the nature and cause of the accusation against him. Its purpose is to apprise the accused why he is being prosecuted by the State. As such, it is an indispensable require of due process and thus, cannot be regarded lightly or brushed aside peremptorily (Taglay v. Daray , 678 SCRA 640, August 22, 2012).

 , if Arraignment is mandatory, but in People v. Cabale  (1990) , the case goes directly to trial without any objection and the counsel and court overlooked. But note the use of the word must so nowadays arraignment is clearly mandatory.

Procedural due process requires that the accused be arraigned so that he may be informed of the reason for his indictment, the specific charges he is bound to face and the corresponding penalty that could be possibly meted against him. It is at this stage that the accused for the first time, is given the opportunity to know the precise charge that confronts him. IT is only imperative that he is, thus, made fully aware of the possible loss of freedom, even of his life, depending on the nature of the imputed crime ( Kummer v. People,  2013).

What is the effect of arraignment on irregular PI? According in Go v. CA, the right to PI is waived if the accused fails invoke the objection upon entering his plea, unless there is actively and consistently demanding for PI even before the arraignment in court his acts and his counsel acts are inconsistent to a waiver – this is a continuing objection  thus it can be raised (Larranaga v. CA ).

Waiver of Reading Information Q.  May counsel for the accused waive the reading of the information during the arraignment and manifest that accused is pleading not guilty to the charge?

No. In Marcos v. Ruiz   213 SCRA 177 (1992), the The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information.

counsel alone cannot waive the reading of the information, it is the accused himself   that must be made to confirm the manifestation to make the plea. The accused of course can ask the court “please do not read the information”, for the purpose is to inform him, if he already read it and manifests and writes it under oath that he knows of the crime he is charged with, there is no need, but it must be

the accused.

SECTION 1 PARAGRAPH A ARRAIGNMENT; PROCEDURE

NOTE: He shall be given a copy of the information upon such instance. Technically, only time he will receive INF.

A. The accused must be arraigned before the court where: 1. The information is filed, or 2. Assigned for trial

The accused must be present at the arraignment and must personally enter his plea. Both arraignment and plea must be made of record, but failure to do so shall not affect the validity of the proceedings.

B. The arraignment shall be made in open court by the  judge or clerk by: 1. Furnishing the accused with a copy of the complaint 2. 3.

or information; Reading the same in the language or dialect known to him; and Asking him whether he pleads guilty or not guilty.

C. The prosecution may call at the trial witnesses other than those named in the complaint or information.

SECTION 1 PARAGRAPH B PRESENCE OF ACCUSED AT ARRAIGNMENT A. The accused must: 1. Be present at the arraignment; and 2. Must personally enter his plea B. Both arraignment and plea shall be made of record But failure to do so shall not affect the validity of the proceedings.

Language Known to Accused In People v. Alicando  (1995), the information for rape was in English, the record of arraignment does not reveal that the information against him was in the language or dialect known to him. Here, the arraignment was held invalid, it cannot be presumed that the arraignment was regularly conducted.

Comment:  After an accused learns of the crime charged against him, he can consult with a lawyer and then the lawyer will ask him, so there will be a discussed, and then they will decide what plea to enter “ guilty ” or “not guilty” . Both arraignment and plea shall be made of record, but failure will not invalidate proceedings.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Duties of Judge when Accused Does not have Counsel 1. To inform the accused that he has the right to have 2. 3. 4.

his own counsel before being arraigned; After giving such information, to ask accused whether he desires the aid of counsel; If he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and If he so desires to have counsel but is unable to employ one, the court must assign a counsel de oficio to defend him.

NOTE: The judge will have to postpone, arraignment will be postponed to give time accused to find private counsel.

Example: When accused present a video that he was forced to stab the victim, this is no longer a guilty plea. When you enter a plea of guilty, you do not present evidence to prove innocence, because there is admission of the commission of the crime.  When the accused is under preventive detention, his case shall be raffled and its records transmitted to the  judge to whom the case was raffled within three (3) days from the filing of the information or complaint. The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after arraignment..

Exception:  Only when the accused states that he waives his right to counsel at arraignment and a showing that he is capable to defend himself.  When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him.

SECTION 1 PARAGRAPH C When Plea of Not Guilty Shall be Entered for Accused 1. When the accused refuses to plead; or 2. When the accused makes a conditional plea. Refusal to Plea or Conditional Plea – Not guilty. This is done when accused is in silence of keeps quiet, the court will enter for him. The plea must be guilty or not guilty period, if is guilty but, this is conditional. It is better to state not guilty.

What is Deemed Admitted in a Plea of Guilty? People v. Egido,   when an unqualified plea of guilty is mitigating circumstance, it is an admission of the material facts alleged in information including the aggravating circumstances cited in the information. When he admits plea of guilty, the

prosecution needs not to prove his guilt anymore, all the material allegations are deemed admitted. What are deemed Not Admitted?    

Those not alleged in the information; Conclusions of fact (therefore, there is bad faith) Jurisdiction of the court Sufficiency of the complaint or information He can still question compliance of Rule 110

 When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed wi thdrawn and a plea of not guilty shall be entered for him.

SECTION 1 PARAGRAPH D Effects when Accused Presents Exculpatory Evidence 1. His plea shall be deemed withdrawn, and 2. A plea of not guilty shall be entered for him. Despite a Plea of Guilty The effect is that the plea shall be deemed withdrawn, these are evidence that will extinguish criminal liability.

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SECTION 1 PARAGRAPH E When Accused is Under Preventive Detention 1. His case shall be raffled 2. Within 3 days from the filing of the information or

3. 4.

complaint; a. The records of his case shall be transmitted to the judge to whom the case was raffled Within 10 days from the date of the raffle: a. He shall be arraigned Within 10 days after arraignment: a. The pre-trial conference of his case shall be held.

Comment: If accused is in preventive detention for his crime is either non-bailable or did not avail of bail.

What is a Raffle? Here in Davao, we have the Hall of Justice, each branch has its own room, court room. There is a main Clerk of Court for the RTC and MTC this is where the cases go. When information is filed, in the Main Clerk of Court, they will have a raffle to which branch the case will go. The accused cannot choose a court for it is random.

Q. Does it refer calendar days or working days? It does not say. It is just to ensure that the detainee will have the right to speedy trial. The private offended party shall be required to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone.

SECTION 1 PARAGRAPH F THE PRIVATE OFFENDED PARTY A. The private offended party shall be required to appear at the arraignment for purposes of: 1. Plea bargaining; 2. Determination of the civil liability; and 3. Other matters requiring his presence.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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B. Effect of failure of offended party to appear despite due notice: 1. The court may allow the accused to enter a plea of 2.

guilty to a lesser offense which is necessarily included in the offense charged, and Only the conformity of the trial prosecutor is required.

Plea Bargaining You plead guilty to a lower offense, it means plead of guilty, there is no longer a trial, the only thing here is how much the accused pay to civil liability. During the arraignment, the accused can ask for civil liability. Before, the accused can plead to a different non-related offense. Now, the plea of guilt that is necessarily included like homicide and murder. Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held  within thirty (30) days from the date the court acquires  jurisdiction over over the person of the accused. accused. The time of the pendency of a motion to quash or for a bill or particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.

SECTION 1 PARAGRAPH G TIME OF ARRAIGNMENT A. When arraignment shall be held: 1. General rule: Within 30 days from the date the court 2.

acquires jurisdiction over the person of the accused Exception: Unless shorter period is provided by: a. Special law, or b. Supreme Court Circular

B. The following shall be excluded in the computing the 30 day period: 1. The time of pendency a. Of a motion to quash, or b. For a bill of particulars; or 2. Other causes justifying suspension of the arraignment NOTE:  This is for the accused who is NOT in detention for under (e) there is 13 days but if he is on bail, (g) applies. Time of Arraignment (Possible Oversight by Court) In People v. Cabale 185 SCRA 140 (1990), here the accused was tried without first being arraigned and that it was discovered after case was submitted for decision, thus he was arraigned before judgment, he was convicted. Here, the court held that the arraignment is valid because the error was deemed non-prejudicial and has been cured. The interest of accused has not suffered and that the counsel entered into trial without objecting  that his client had not yet been arraigned.

Indefinite Suspension of Arraignment In Solar Team v. How  338  338 SCRA 511, the court ruled that the trial court may indefinitely suspend the arraignment of the

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accused until the petition for review with the SOJ is resolved. The delay here is justified because the importance is based on the exhaustion of administrative liabilities, an immediate arraignment would have then proscribed right of accused to appeal the resolution of the prosecutor to the SOJ.

NOTE: This was decided before December 2000, but now NO, the court is not obligated to suspend the proceedings or arraignment. PEOPLE v. PANGILINAN Even though there was two years of the belated arraignment but the counsel actively participated. There is already trial even without arraignment, but counsel participated, it is in a way, the lawyer has entered a plea of not guilty. The non-arraignment is not fatal but there is already trial. As long as the purpose of the arraignment has been fulfilled. Even if it was done belatedly, it was just a formal defect.

OBLES v. BUEMIO There was a motion to dismiss the information on the ground of violation of right to speedy. His warrant was withdrawn. There was a third reschedule. There 253 days delay between the arraignment and the final schedule of the pre-trial. This case cited Rule 116, Section 1(g). There is SC Circular No. 38-98: requiring the arraignment and pre-trial within 30 days from acquiring jurisdiction of accused.

Speedy trial  is the relative terms and necessarily involves a degree of flexibility. Such right to speedy trial is violated when there is oppressive. Because Olbes did not oppose to the reschedules, and it was beyond the control of the court. The court does not find a violation to the speedy trial, did not deliberately delayed.

KUMMER v. PEOPLE In an amended information or complaint, the need for arraignment is equally imperative. However, this pertains only to substantial amendments but not formal amendments. The change of date of commission is merely formal. If there is an amendment after arraignment but only formal. If only formal, there is no need for a new arraignment. 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.

PLEA OF GUILTY TO A LESSER OFFENSE A. Requisites 1. Such plea may be made by the accused: a. During arraignment, or b. After arraignment but before trial;

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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2. The lesser offense must be necessarily included in the offense charged;

3. It must be made with the consent of: a. Offended party; and  b. Public prosecutor B. It is not necessary to amend the complaint or information when the accused pleads guilty to a lesser offense.

Plea Bargaining, Defined  Plea bargaining in criminal cases is a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the grave charge. Ordinarily, plea-bargaining is made during the pre-trial stage of the criminal proceedings. However, the law still permits the accused sufficient opportunity to change his plea thereafter (People v. Villarama, 210 SCRA 246, 1992). It normally starts during arraignment. It can still proceed however after arraignment before trial. This is one way of terminating a case. It must be done before trial. There are still instances where there can be plea bargaining.

Consent of the Prosecutor In People v. Villarama,   even in “victimless crimes” like the violation under Dangerous Drugs Act, there is still a need to secure consent of the prosecutor for it is to be reminded that the State is also an offended party in a criminal offense.

Meaning of “Lesser Offense” While the rules allow that the accused can plead guilty to a “lesser offense regardless whether or not it is necessarily included in the crime charged” it is important to note however, that if the fact of death   was there, logic and plain common sense would not allow a plea from homicide to attempted homicide as a consequence of plea bargaining agreement, this  Amatan v. Aujero, Aujero,  1995). is not allowed ( Amatan

Plea Bargaining to a Lesser Penalty; Not Allowed Q. May accused plead guilty to an offense but ask for a penalty lower that what is imposed by law for the crime to which he pleaded guilty?

NO. People v. Magat 332 SCRA 517, En Banc (2000) provides that the only instance when plea bargaining is allowed under the rules is when an accused pleads guilty to a lesser offense under Rule116, Section 2. What happened here is not correct, because by pleading guilty to the offense charged, the accused should be sentenced to the penalty to which he pleaded thereto. NOTE: In People v. Patrolla, Jr.  254 SCRA 467 (1996), the pl ea of guilty by one accused that he alone committed the crime does not operate to acquit the co-accused.

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It Must be Before Trial The plea of guilt must be before trial. In People v. Villarama it was allowed by court before prosecution rests, but this is a 1992 case. But now, it is clear IT MUST BE BEFORE TRIAL.

  When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf.

PLEA OF GUILTY TO CAPITAL OFFENSE; EFFECTS A. The court shall: 1. Conduct a searching inquiry into the voluntariness 2.

and full comprehension of the consequences of his plea; and Require the prosecution to prove his guilt and the precise degree of culpability.

B. The accused may present evidence in his behalf. NOTE: Here, there will still be trial to d etermine the guilt. Content of Searching Inquiry In People v. Tonyacao  433 SCRA 513 (2004), the court ruled that the mere warning that accused faces penalty of death is insufficient. The court provided herein the guidelines:

(1) Ascertain from the accused himself (a) how he was brought into the custody of the law; (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations.

(2) Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. (3)  Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty.

(4) Inform the accused of the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence.

(5)  Inquire if the accused knows the crime with which he is charged and to fully explain to him the elements of the crime which the basis of his indictment is.

(6) All questions posed to the accused should be in a language known and understood by the latter.

(7) The trial judge must satisfy himself that the accused, in pleading guilty, is truly guilty. The accused must be required to narrate the tragedy or reenact the crime or furnish its missing details.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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Effect on Aggravating Circumstance In People v. Latupan  (2001), a plea of guilty to murder does not mean that the accused admits to the aggravating circumstances for these must be proven with equal certainty. This is a conflicting ruling, but note here what involves here is a capital offense.

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Plea of Guilty to Non-Capital Offenses Effect: The court may receive evidence from the parties Purpose: To determine the penalty imposed 

Necessarily includes civil liability.

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In People v. Albert,  an improvident plea where the court must proceed with more care, for the execution of such sentence is irrevocable. This is to avoid improvident plea of guilty, wherein the accused will waive his life and liberty without fully knowing the consequences of his plea.

Searching Inquiry must focus on the voluntariness of the plea and the circumstances to such plea of guilty.

PEOPLE v. GUMIMBA (2007) He was charged with rape with homicide, he pleaded not guilty during arraignment but changed his earlier plea to plea of guilty, which RTC allowed but an inquiry was conducted. During an inquiry there was a question and answers whether he voluntarily plead guilty and was he aware of consequences. He contends that his plea was an improvident plea of guilty. In this case, his plea was improvident. There are three conditions to obviate and improvident plea of guilty: 1. Conduct a searching inquiry; 2. Require the prosecution to present evidence; 3. Ask the accused if he would want to present his own evidence. There is no hard and fast rule in determining an improvident plea of guilty. Each case must be measured according to its own merit. The court did not observe strictly the compliance because a mere warning that accused faces the penalty of death is insufficient. Such procedure falls short of the exacting guidelines in the conduct of a search inquiry.

Acquittal Despite Plea of Guilty In People v. Mendoza  (1994), where an accused pleads guilty, it does not mean he is automatically convicted. Additional evidence independent of the plea may be considered to convince the judge that it was intelligently made.

What is an Improvident Plea? It is usually a plea that is involuntarily made and without consent. A plea is usually considered improvident when there was failure to conduct searching inquiry, failure of prosecution to present evidence or no rational basis between the testimony and of the guilt.

Plea of Guilty in Non-Capital Offense There is usually no trial but a hearing for civil liability and for the imposition of judgment. Can he still withdraw this? As long as the judgment of conviction has not become final (Sec. 5).  At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be  withdrawn and be substituted by a plea of not guilty.

Withdrawal of an Improvident Plea of Guilty 1. When it can be done:   at any time before the  judgment of conviction conviction becomes final. 2. Effect when withdrawal is made:   The guilty plea shall be substituted by a plea of not guilty.

When to Raise Improvident Plea 1. Raising Issue on Appeal People v. Salamillo 404 SCRA 211 | June 23, 2003

He was not ascertained how he was brought into the custody of the law. The court also did not elicit information about the personality profile of Gumimba.

Accused here was charged with robbery with homicide. He pleaded guilty, but during trial he testified that he did so because a policeman threatened to kill him if he pleaded not guilty.  On review after he was sentenced to death, he raised the issue that his plea was improvidently made.

His plea was not the sole basis of judgment however.  The convictions based of improvident plea are set aside only if such plea is the sole basis of judgment.

Issue: Should he be allowed to withdraw his plea of gu ilty?

It is very important for the prosecution to still present evidence to prove the guilt of the accused because the plea of the accused must not be the sole basis of the conviction or nonconviction of the accused. Prosecution still has to prove.

 When the accused pleads guilty to a non-capital offense, the court may receive evidence from the parties to determine the penalty to be imposed.

NO.  The provision states that there should be a categorical declaration  from the accused that he withdraws his plea of guilty and substituting it with a plea of not guilty. In this case, there is nothing in the records to show that accused filed a motion to withdraw his plea of guilty, or that he, manifested unequivocally that he was withdrawing his plea. His testimony during trial is not a categorical declaration.

2. Raising Issue After Finality of Judgment In Palo v. Militante (1990), when the accused applied for probation that judgment in criminal cases becomes final, thus,

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

the judgment having become final, the judge is not vested with any discretion to allow the alleged improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty.

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Q. Where the accused appears for trial without counsel and his motion for postponement is denied, is the court required to appoint a counsel de oficio for him?

NO.  The duty of the court to appoint is mandatory   Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de officio to defend him.

Right of Accused to Counsel 1. The accused has a right to be assisted by counsel during his trial

2. Before arraignment, the court shall: a. Inform him of his right, and b. Ask him if he desired t have one 3. The court must assign a counsel de oficio to defend the accused, unless a. He is allowed to defend himself in person b. He has employed counsel of his choice

Duties of the Court BEFORE Arraignment 1. To inform the accused that he has the right to have 2. 3. 4.

his own counsel before being arraigned; After giving such information, to ask accused whether he desires the aid of counsel; If he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and If he so desires to have counsel but is unable to employ one, the court must assign a counsel de oficio to defend him. (People v. Agbayani,  1998, En Banc).

 The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de officio such members of the bar in good standing who, by reason of their experience and ability, can competently defend the accused. But in localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused.

Appointment of Counsel De Oficio 1. What the court must consider before appointing a counsel de oficio for the accused: a. The gravity of the offense, and b. The difficulty of the questions that may arise 2. Whom can the court appoint as counsel de oficio a. Such members of the bar in good standing, b.

who by reason of their experience and ability, can competently defend the accused In localities where such members of the bar are not available – any person, resident of the province of and of good repute for probity and ability, to defend the accused.

Applicability during Trial

only at the time of arraignment . This is no longer where accused proceeded with arraignment and trial with a counsel of his choice but when the time for presentation of the evidence for the defense has arrived, he appears by himself alone and the absence of his counsel was inexcusable (Sayson v. People).

 Whenever a counsel de oficio is appointed by the court to defend the accused at the arraignment, he shall be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment.

Postponement of Arraignment In Arquero v. Mendoza 315 SCRA 503 (1999), the court did not grant the postponement when the accused appeared with new counsel on the ground that his services has just been hired. Usually, when the Court assigns de counsel de oficio  for the accused at the arraignment, he shall be given at least one hour to consult with the accused as to his plea before proceeding with the arraignment. There is no reason why the counsel in this case could not have been required to confer to prepare.  The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired.

Bill of Particulars 1. When accused can move for a bill of particulars: before arraignment

2. Purpose for moving for a bill of particulars: to enable the accused properly to plead and prepare for trial

3. What to motion shall specify a. The alleged defects of the complaint or b.

information, and The details desired.

What is a Bill of Particulars? It is a written statement or specification of the particulars of the demand for which an action at law is brought, or of a defendant’s set-off against demand, (including dates, sums, and items in detail,) furnished by one of the parties to the other, either voluntarily or in compliance with a judge’s order for that purpose (Black’s Law Dictionary). This is normally filed by the accused when the allegations in the information are too vague, too general and not specific enough, and this must be done for the accused to properly prepare for his trial. This is normally filed by the accused when he finds that the allegations in the information are vague, not specific enough or not detailed enough. It is to enable preparation for trial.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

b. Any designated documents, papers, books,

One of the modes of discovery. The filing is to enable accused to prepare, this is an avenue given to a party to find out more about him. This is normally done before arraignment.

WEBB v. DE LEON (2007) Webb filed violation of right to discovery procedure of PI for suppressing sworn statements and evidence. Are modes of discovery like right to move bill of particulars and production or inspection of material evidence in possession of the prosecution, may be availed during PI? YES. What was used was the 1985 Rules, under Section 10 and 11, the failure to provide by the rules does not negate its use during PI. They very reason because in this stage, for the liberty of accused is at stake. The risk of to the Liberty of Webb cannot be understated which was non-bailable, which needs to prove the strength of evidence. There was also exculpatory character of documents:

Comment: Why deprive the accused of such right? This is really part of the due process that the accused is entitled to, and if he wants to check documents and things, even still under PI, why not? The failure to provide discovery proceedings for PI by rule does not negate its issue in PI if liberty if at stake, this is penned by Justice Puno. In cases like this, they involve a long PI stage thus discovery proceedings were allowed , the court here had acquitted Webb.

 Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, object, or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in the possession or under the control of the prosecution, police, or other law investigating agencies.

Production and Inspection of Material Evidence A. Requisites 1. The accused must file a motion showing good cause; 2. There must be notice to the parties B. Purpose of production: to prevent surprise, suppression or alteration.

C. How the court shall resolve the motion It may order the prosecution: 1. To produce and permit the inspection and copying or photographing of: a. Any written statement given by complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers,

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2. 3. 4.

accounts, letters, photographs, objects or tangible things. Not otherwise privileged; Which constitute or contain evidence material to any matter involved in the case; and Which are in the possession or under the control of  a. The prosecution; b. The police; or c. Other law investigating agencies.

COMMENT: Anything that is in the hands of the prosecutor, the accused has the right to inspect it. When the accused wants to view these evidences, his remedy is to file under Section 10/  Upon motion by the proper party, the arraignment shall be suspended in the following cases:  The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose;  There exists a prejudicial question; and  A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office.

SUSPENSION OF ARRAIGNMENT A. Requisites for Suspension 1. The proper party must file a motion for suspension 2. The proper ground must be present B. Grounds For Suspension 1. The accused appears to be suffering from an UNSOUND MENTAL CONDITION  which effectively renders him unable to fully understand the charge against him and to plead i ntelligently thereto. Effect: The court shall order his mental examination, if necessary, his confinement for such purpose.

2. There exists a PREJUDICIAL QUESTION; and 3. A PETITION FOR REVIEW  of the resolution of the prosecutor is pending at either the Department of Justice or the Office of the President. However: the period of suspension shall not exceed 60 days from the filing of the petition with the reviewing office.

Pendency of Appeal with DOJ Q. Can the trial court order proceedings to continue despite the pendency of an appeal with the DOJ?

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

YES. Under Section 6, Rule 112, the judge shall issue the arrest warrant if he finds P C after personally evaluating the resolution of the prosecutor and its supporting evidence. It bears stressing that the court is not bound to adopt the resolution of the SOJ since the court is mandated to independently evaluate or asses the merits of the case, and may either agree or disagree with the recommendation of the SOJ. Reliance alone on resolution would be an abdication of the trial court’s duty and jurisdiction to determine prima facie case. Evidently, when the RTC judge issued the order, it was merely performing his mandated duty to personally determine the existence of PC and thus arrive at a resolution of the motion to dismiss. Having found probable cause, the RTC acted well within its authority in denying such motion to dismiss.

DINO v. OLIVARES (2009) Two resolutions were filed find Olivares accountable for vote buying Olivares filed appeal to COMELEC, Olivares filed MTQ for being duplicitous. Before judge can act to the MTQ, the ACP filed an opposition to the MTQ,, and motion to admit amended INF. Judge Madrona issued order denying the MTQ and admitted the amended INF. Olivares failed to appear before RTC, thus ordering arrest for the confiscated bail bond. 

Did judge acted properly when he failed to defer the arraignment? – NO

Section 11(c), there is no indefinite suspension of arraignment, but only for 60 days, he filed appeal in COMELEC in Oct. 7; made rescheduled from Oct 11 to Dec. 13; the MTQ reset it to Feb. 1; the total is more than 5 months. The judge cannot wait for the appeal only for 60 days. 

Similar to the case of Sps. Trinidad v. Ang

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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RULE 117 MOTION TO QUASH Motion to Quash It is the mode by which an accused assails the validity of a criminal complaint or information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the information. Motion to Dismiss   refers to the case, but when it comes to the information, it is a Motion to Quash. 

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Motion to Quash, a Hypothetical Admission of Facts In Milo v. Salanga  152 SCRA 113 (1987), factual allegations can only be raised as a d efense at the trial. In resolving a motion to quash, courts cannot considered facts contrary to those alleged in the information which do not appear on the face of the information. This is because a motion to quash is a hypothetical admission of the facts alleged in the information. Matters of defense cannot be proved during a hearing for a motion to quash, except when Rules allows, prescription or double jeopardy.

 At any time before entering his plea, the accused may move to quash the complaint or information.

Comment:  Obviously, there are no oral motions, it may be

Comment: Technically, the accused is deemed to know about

 The accused may move to quash the complaint or information on any of the following grounds:

INF is during arraignment, so it can be seen that this is problematic, what if the accused did not know? There must be a period so accused can file MTQ.

When No Motion is Filed Q.  May the judge quash an information without any motion from the accused?

NO.  It is clear from the rules that the right to file a motion to quash belongs only to the accused. There is nothing in the rules which authorizes the court or judge to motu proprio initiate motion to quash ( People v. Nitafan, 1999). Motion to Quash After Arraignment; Special Instances Q. May an accused file a motion to quash after arraignment? YES. Under Rule 117, Section 9, motion to quash is not improper even after arraignment if the same is grounded on the failure to charge an offense and lack of jurisdiction of the offense charged, extinction of the offense or penalty and Sandiganbayan,  2000). double jeopardy (Marcos v. Sandiganbayan,  The motion to quash shall be in writing, signed by the accused or his counsel and shall distinctly specify its factual and legal grounds. The court shall consider no ground other than those stated in the motion, except lack of jurisdiction over the offense charged.

Forms and Contents of a Motion to Quash Form: 1. It must be in writing; and 2. It must be signed by the accused or his counsel. Contents: 1. General Rule: The motion shall distinctly specify 2.

its factual and legal grounds and the court will not consider any ground not stated in the motion. Exception: The only ground that the court may consider motu proprio  even if not raised in the motion is lack of jurisdiction over offense charged.

signed by the accused or the lawyer, what is important is that it states he factual and legal grounds.

That the facts charged do not constitute an offense;

NOTE: If I will file a MTQ; I shall include the grounds that are applicable to the case of the client. This is called Omnibus Motion Rule  (Rule 9, Section 1), you should include all the ground available; otherwise they cannot be considered in the future. So all of the other grounds are waivable, except when there is lack of jurisdiction over the offense charged.

Basis of Determination Whether Facts Constitute Offense Q. What is the test to determine whether or not the information charges an offense? The fundamental test of the viability of the motion to quash on the ground that the facts averred in the information do not amount to an offense is whether the facts alleged would establish the essential elements of the crime as defined by law. In this examination, matters aliunde  are not considered (Mendoza-Ong v. People,  2003).

Hypothetical Admission In Lopez v. Sandiganbayan , when an information is filed, whether or not what stated therein is true, it does not matter what is important at this stage is that the information must be complete, determination of such falsity is during trial. Thus, look at the allegation if the facts charged do not constitute an offense then MTQ can be filed. That the court trying the case has no jurisdiction over the offense charged;

Basis for Determining Jurisdiction Jurisdiction over a criminal case is determined by the allegations of the complaint. In resolving such motion, the facts contained in the complaint should be taken as they are. This involves both  jurisdiction over subject matter  and the territorial jurisdiction  and out of all the grounds, this is one which is not waivable  and this is the heaviest ground out of the following.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

That the court trying the case has no jurisdiction over the person of the accused;

Basis for Determining Jurisdiction (Waivable) Jurisdiction over the person is acquired by the court by virtue of voluntary submission or arrest. To prevent waiver of this defense, the accused must raise the lack of jurisdiction seasonably by motion for the purpose of objecting to the  jurisdiction of the court, otherwise he shall be deemed to have submitted himself or his persons to the jurisdiction. That the officer who filed the information had no authority to do so;

Effect of Lack of Authority (Waivable) The trial court cannot acquire jurisdiction when the officer is without authority to file the information. But if the accused pleas this may be construed as a waiver of all formal objections. That it does not conform substantially to the prescribed form;

NOTE: This is also waivable, like failure to have the certification or the signature according to Rule 110. This is waivable. That more than one offense is charged except when a single punishment for various offenses is prescribed by law;

Duplicitous Information The accused, if he fails to object prior to arraignment to such, may be found guilty of any or all of the crimes alleged therein and duly proven during trial. This is waivable. Note the exception under Rule 120, that a failure to object would allow possible conviction of every offense alleged in the information despite being duplicitous. That the criminal action or liability has been extinguished;

Article 89 of the Revised Penal Code 1. Death of the convict 2. Service of sentence 3. Amnesty 4. Absolute pardon 5. Prescription of the crime 6. Prescription of the penalty 7. Marriage by the offended woman under Article 344 That it contains averments which, if true, would constitute a legal excuse or justification; and

NOTE: For example, when in the information, the prosecutor charges the accused with homicide saying that X stabbed Y because Y tried to stab, in which the information itself provides for the legal justification. Or if it alleges that X was insane, then a motion to quash may be filed.

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That the accused has been previously convicted or acquitted of the offense charged or the case against him  was dismissed or otherwise terminated without his express consent;

Pendency of Two Cases Q. While two informations for same offense are still pending against the accused, may he file a motion to quash invoking double jeopardy?

No. The mere filing of two informations charging the same offense does not yet afford the accused in those cases the occasion to complain that he is being placed in double  jeopardy twice for the same offense for the simple reason that the primary basis for the defense has already been convicted or acquitted in the first case or that the s ame has been terminated without his consent. Thus, clearly there has been no double  jeopardy present to warrant a motion to to quash. GROUNDS FOR A MOTION TO QUASH (a) That the facts charged do not constitute an offense; (b) The court trying the case has no jurisdiction over the offense charged;

(c) The court trying the case has no jurisdiction over the (d) (e) (f) (g) (h) (i)

person of the accused; The office who filed the information had no authority to do so; The complaint or information does not conform substantially to the prescribed form; More than one offense is charged except when a single punishment for various offenses is prescribed by law; The criminal action or liability has been extinguished; The complaint or information contains averments, which, if true, would constitute a legal excuse or  justification; and Double jeopardy.

Exclusivity of Grounds Enumerated The following are not considered grounds for motion to quash: Absence of PI (Villaflor v. Vivar,  2001). 

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Lack of PC to charge accused (PP v. SB, 2004). Failure to furnish accused with a copy of the resolution of prosecutor finding probable cause (Vasquez v. Hobilla-Alinio, 1997).

SASOT v. PEOPLE NBI conducted an investigation by NBA for possible violation for unfair competition against Sasot. Before arraignment, a MTQ was filed that the facts do not charge offense, and lack of  jurisdiction of Section 3(A) and (B). Was the denial of MTQ proper? YES. The arguments focused on the alleged defect filed and capacity of NBA to sue (NBA being a foreign corporation), they are not grounds to MTQ.

Comments:  There are specific grounds, capacity to sue   has nothing to do in an information.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

TOLENTINO v. JUDEG PAQUEO (2009) INF for violation of RA 8282 involving failure to remit the premiums of premiums. Tecklo filed MTQ stating that the State Prosecutor who filed the INF has no authority to commence such INF. RTC quashed the INF citing Section 3(d) was used. RTC held that the INF was filed by Tolentino without approval of City Prosecutor of Naga City. Was the quashal proper?

YES. Section 3(d) of Rule 117; Section 3, par. 3 of Rule 112. In order for the officer to be authorized, the information must be filed with the prior written authority of the provincial, city, etc. The State Prosecutor does not approve information, he is not included in the list of officers empowered to file information. The non-compliance was a ground to quash the information.

 If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment.

Amendment of Complaint or Information 1. If the motion to quash is based on: a. An alleged defect of the CMP or INF which can be cured by amendment: i. Court shall not quash the CMP/INF outright; ii. It shall order than an amendment be made.

SALIBO v. WARDEN (2009) Salibo was suspected to be Malang, who was one 197 accused of the Ampatuan Massacre. Salibo went to the police station, and stated during the massacre he was in Saudi Arabia, he presented the evidence of identification, however, the police officers apprehended Salibo and tore page two of his passport and he was detained for three days. He was transferred to Quezon Jail Annex. He filed for a petition for habeas corpus, this was granted, he was released, but this was reversed by the CA saying that the arrest was valid, and that the proper way is the file MTQ. What is the proper remedy?

Not motion to quash . He was not validly arrest with the warrant and none of the grounds for the filing MTQ was present and this list is exclusive, habeas corpus must be filed. TORRES v. SANDIGANBAYAN (2016) COA audited discovered overpricing of medicine at the HPN, thus OMB made investigation. Torres was not informed of the new PI. Eight new informations were filed, he only knew when there was an HDO against him. Torres field a MTQ based on Section 3(d), that OMB has not authority to file information. He argued that the PI and factfinding lasted 18 years –  based on the violation of right to speedy trial.

MTQ was proper. Basis was violation of the right of speedy disposition of case, for it involves the fact-finding investigations. The basis for both investigations was the COA report and 8 years passed until PI was order and 16 years before the OMB found PC. The office of the ombudsman failed to submit any justifiable reason.

Comment:  Atty. Suarez does not understand why the court allowed the grant on the ground of “speedy disposition.”

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b. The ground that the facts charged do not constitute an offense: i. That court shall not quash the CMP or INF outright; ii. It shall give the prosecution an opportunity to correct the defect by amendment.

2. The court shall grant the motion to quash the complaint of information if: a. Prosecution fails to make the amendment, or b. The CMP/INF still suffers from the same defect despite the amendment.

Requirement of Preliminary Investigation Q.  When an information is amended, is accused entitled to another preliminary investigation? Before the plea is taken, the information may be amended in substance or form, without leave of court; but if amended in substance, the accused is entitled to another PI, unless amended charge is related to or is included in the original charge. Thus the rule is: A substantial amendment in an information entitles an accused to another PI. However, if the amended information contains a charge related to or is included in the original information, a new PI is not Sandiganbayan , 2005). required (Matalam v. Sandiganbayan

Comment: So what does a judge do? What happens when a MTQ is filed? It depends on the ground. Clearly, the information should not be quash outright for the rules afford the prosecution an opportunity to correct the information by filing and amended information . Section 3(a), (d), (e), (f) are curable by amendment. Note however the difference under Section 5.  

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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 If the motion to quash is sustained, the court may order that another complaint or information be filed except as provided in section 6 of this rule. If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no order is made or if having been made, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause, the accused, if in custody, shall be discharged unless he is also in custody of another charge.

Effects When a Motion to Quash is Sustained General Rule: The court may order that another complaint or information be filed – referring to a new information. Exception: An order sustaining the motion to quash is a bar to the filing of another complaint or information if the motion was based on the grounds that: 1. Criminal liablity has been extinguished [Section 3(g)]; 2. The accused will be placed in double jeopardy 3(i).

Effects on the Accused Who is in Custody 1. If the court issues the order to file a new complaint or

2.

information: a. And a new information is timely filed – he shall not be discharged unless admitted to bail; b. But no new information is filed within the time specified – he shall be discharged unless he is in custody for another charge. If the court does not order that a new information is filed – he shall be discharged unless he is in custody for another charge.

Q. What if a motion to quash is denied? From a denial of a motion to quash, the appropriate remedy is for accused to go trial on the merits, and if an averse deicison is rendered, appeal therefrom in the manner authorized by law.

Comment: What involves here is that if the MTQ is granted and the information is quashed, except is based on (g) or (i), there can be a filing of a new information  and it will not bar such.

Q . What happens during the period when the MTQ is granted, and the court requires information to be filed, what happens to the accused provided that before the prosecution files a new information, there is basically no charge at all?

He shall not be released.   This is when if the court

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Effects when Order to File Another Complaint or Information is Made by the Court General Rule: This shall not be a bar to another prosecution for the same offense.

Exceptions: This shall be a bar to another prosecution for the same offense if the motion was based on the grounds that: 1. The criminal liability of the accused has been extinguished under Section 3(g); and 2. Double jeopardy under Section 3(i).

GONZALES v. SALVADOR (2006) Filed MTQ on lack of jurisdiction there being no allegation that Gonzales resides in Makati or published in Makati. RTC Makati granted MTQ. Gonzales filed a motion to order the public prosecutor to amend the information. Dale opposed the motion contending the order became final after 15 days, stating that RTC did not have power to recall. Was the order to file another INF may be filed after quashal.

NO.  Amendment of information under Sec. 4 if the court finds curable defect by amendment. In Section 5, the order to file another information must be contained in the same order. Gonzales never asked propriety of amendment. The order quashing  the information was final. Section 5 presuppose that the previous order to file another information was given by the court “if having been made”. The order must

include such order to file a new information. Comment: There was a MTQ, and it was granted. Now, it was granted on May 29, 2002. This is under Sec. 5, and it says that if the order granting the motion, the court orders the prosecution to file a new information, then the prosecutor must file. But here there was no order . The private offended party asked the court to issue an order to amend the information , is this correct? NO. This is because, this information was already quashed in May 29, 2002 and this is tantamount to dismissal of the case and becomes final and executory after 15 days. The motion was filed 26 days after, in other ways, you cannot amend an information when the case is already dismissed. What information can you amend? You can still file a new information, as long as there is no double  jeopardy. Remember a MTQ is filed before arraignment, and the amendment before arraignment can be formal or substantial, it can be made before arraignment.

orders the prosecution to file new information. But if the court does not order and/or the prosecution does not file a new information then the accused shall be released.

If you are the prosecutor, you can file an amended information if there is MTQ this is to counter the quashal. There is no need to wait for an order to amend the information if you are the prosecutor. You can do so before arraignment.

  An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in section 3 (g) and (i) of this Rule.

The problem is if the prosecutor does not do anything, when MTQ was filed, the only defect of the INF for it did not state the residence of the offended party, it could have been repaired, and the MTQ was granted and it became final. The only thing left is to file for a new information.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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DABALOS v. RTC (2013) Dabalos was charged with RA 9292. Dabalos alleged that at the time of the incident he was no longer in a dating relationship hence RA 9262 was inapplicable. Whether information alleging a fact contrary to admission. It should not be quashed.

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the motion to quash is not a bar unless the exceptions. This case used Section 3(a), they are yet to prove that the liability was extinguished. Another information can be filed  no longer an amended information.

PEOPLE v. BAYABOS (2015) The information sufficiency alleged the necessary elements, there was period of two days given to the prosecutor to amend the information to reflect the cessation of dating relationship. In the present case, RTC was correct in directing the amendment of the information and in denying the motion to quash the same.

Comment: If the dating relationship is removed then the crime would different but then again, a substantial amendment changing the crime to reflect the true facts or instances is allowed. The SC allowed such, amendment can be done.

PEOPLE v. BAYABOS (2015) Balidoy was midshipman for PMMA, he was required to undergo the indoctrination, he was “hazed” and he died. The Deputy OMB filed crime against Bayabos et al. for hazing. An MTQ was filed that the information did not contain all the essential elements of the offense because of no allegation that such indoctrination was a prerequisite to admission to PMMA. Before Bayabos et al were arraigned, the SB quashed the INF and dismissed case against them, that the INF did not charge an offense and that it was mere conclusions of the law.

Q. Was quashal proper? YES.  The facts did not constitute an offense. The reference to the technical term of hazing, the information is a mere conclusion.

Information was filed against Castillo charging him of RA 3019. He filed supplemental MTQ on the ground of 3(a) stating that the undue injury must not only be mentioned, it must be specified. SB granted such. Outright quashal was improper. If it is based on the ground that the facts do not constitute an offense, the prosecution shall be given by the court opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails  to make amendment or  the information still suffers from the same defect despite the amendment. Thus, when an MTQ is filed challenging validity and sufficiency of INF, and the defect may be cured by amendment, court must deny the motion to quash and order the prosecution to file an amendment Information.

NO T to automatically quash In this the courts are mandated NOT the information ; rather it should grant the prosecution  the opportunity to cure the defect through an amendment. Even assuming information was defected, SB should have ordered its amendment and not its quashal. DIO v. PEOPLE (2016) A complaint was filed against Dio. She filed a MTQ under 3(a), the quashal here was deemed improper because there was a failure to provide the prosecution with the opportunity to amend is an arbitrary exercise of power. If it can be cured by amendment, the court must deny the MTQ and order the prosecution to file an amended information. Generally, a defect of 3(a) is one that may be corrected by

Q. Was is the remedy? The prosecution was given an opportunity to correct the defect by amendment however, he still argued that there was no defect in the amendment. Thus, he failed to make an amendment of the complaint of information. Thus, it follows that the motion to quash shall be granted, meaning that the MTQ is sustained.

Q. If MTQ is sustained, what is the next remedy? Section 5, if MTQ is sustained, the court may order a new INF may be filed. However, the prosecution did not file a new information after MTQ grant, and still insisted the there was still defect.

Q. Since MTQ is final and order quashing was final, does this bar the prosecution filing information?

It does not bar . Even though there was order quashing the information. Under Section 6, an order sustaining

amendment and the courts are mandated not to automatically quash information, it should grant the prosecution the cure the defect an amendment.

 When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances:

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in section 1(f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense.

DOUBLE JEOPARDY A. REQUISITES TO PLACE THE ACCUSED IN DOUBLE JEOPARDY 1. The accused was charged upon a valid complaint or 2. 3. 4. 5.

information; He was tried in a court of competent jurisdiction; He has been arraigned and has pleaded to the charge made against him; He has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent; He is prosecuted anew for: a. The offense charged; or b. Any attempt to commit the same, or any frustration thereof; c. Any offense which: i. Necessarily includes the offense charged in the former complaint or information, or ii. Is necessarily included in the offense charged in the former complaint or information.

B. When the conviction of accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information: 1. The graver offense developed due to supervening facts arising from the same act or omission 2. 3.

constituting the former charge; The facts constituting the grave charge became known or were discovered only after plea  was entered in the former complaint or information; or The plea of guilty to the lesser offense  was made without the consent of: a. The prosecutor; and b. The offended party, except when i. The offended party fails to appear despite due notice; or ii. There is no offended party.

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Three Exceptions under Rule 117(2) 1. Supervening fact doctrine – Melo doctrine. 2. Newly discovered fact 3. When plea of guilty to lesser offense is without consent of prosecutor and offended party

REQUISITES FOR DOUBLE JEOPARDY FIRST JEOPARDY MUST FIRST JEOPARDY MUST HAVE ATTACHED PRIOR HAVE BEEN VALIDLY TO THE SECOND TERMINATED When first jeopardy attached? 1. When there is a valid complaint of information.

When first jeopardy terminated? 1. When accused is acquitted; or

2. The complaint or

2. When accused is convicted; or

information was filed in a competent court.

3. The accused has been

3. When the case is

arraigned and has pleaded.

otherwise dismissed without the express consent of the accused

SECOND JEOPARDY MUST BE FOR THE SAME OFFENSE OR FOR THE SAME ACT When second jeopardy for the same offense? 1. When two offenses are identical.

2. When the second is an attempt to commit the first.

When second jeopardy for the same act? 1. First charge is for an act punished by a law and an ordinance, and the second charge under either is for the same act.

3. When the second is a frustration of the first.

4. When the first necessarily incudes the second.

5. When the first is necessarily included in the second.

Supervening Fact (Melo Doctrine) M stabbed K, frustrated homicide, he was guilty then convicted. After two days, K died, the prosecutor amended the INF for homicide. There is no double jeopardy. The graver offense of homicide developed through the supervening fact.

Newly Discovered Fact M shot K, K was confined, M was charged with FH, he arraigned but he did not know that K died that night, he was convicted, Prosecutor wants to amend to INF, there is no double jeopardy.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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Plea Bargain to a Lower Offense Without Consent If prosecutor files anew, there is no jeopardy if the consent of the prosecutor and the offended party, unless the private prosecutor and offended party did not attend arraignment.

Two kinds of Double Jeopardy 1. Same offense 2. Same act involving a law and an ordinance VALID TERMINATION OF FIRST JEOPARDY 1. Acquittal – absolves the accused immediately, it is a rule that when an accused is acquitted, such judgment is final and executory. GR: Acquittal cannot be appealed; XPN: Reopening of the case is allowed when: (1) State was denied due process (2) Judgment with grave abuse of discretion amounting to lack or excess of jurisdiction.

2. Conviction – This involves the determination that there is guilt of the accused. NOTE: 15 days before finality

3. Dismissed or Otherwise Terminated without the Express Consent of the Accused GR:  Double jeopardy applies when such dismissal or termination was without the consent of the accused.

XPN:  There is grave abuse of discretion in dismissing the case. XPNTO THE XPN: The following: (1) Violation right to speedy trial (2) Grant of demurrer to evidence (3) Discharged as state witness Jurisprudential Doctrines In Cudia v. CA (1998), for jeopardy to attach there must be a valid complaint or information, here the information was filed by Angeles City prosecutor outside jurisdiction. Thus, dismissal of the case did not amount to a double jeopardy. In Binay v. Sandiganbayan   (1999), the first jeopardy here never attached because at the time RTC was not a competent court of jurisdiction, there can be no double jeopardy where the accused entered a plea in a court that had no jurisdiction. In People v. Nitafan  (1999), even if there are three cases which are pending, there is still no double jeopardy when the first  jeopardy has not yet been validly terminated. terminated.

Void Plea Bargaining Resulting to a Void Conviction In People v. Magat (2000), the revival of the cases here was not considered as a violation of the protection against double  jeopardy. It was shown here the while the accused pleaded guilty to the rape charges he bargained for a lesser penalty.

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Under the rules, pleading guilty to a lesser offense or condition subject to a proviso, a conditional plea is equivalent to a plea of not guilty. Thus, the judgment of the court based on a void plea-bargaining is also void ab initio, so that double jeopardy here will not lie. In People v. Dela Torre (2002), an appeal for sole purpose for increasing penalty will violate right against double jeopardy. However in People v. Rondero   (1999), when the accused himself appeals from the sentence of the trial court, he waives his right against double jeopardy and throws the whole case open for review of the appellate court, which is then called to render judgment as the law and justice dictate.

Appeal of Civil Liability When an accused humps bail, he is deemed to have abandoned his appeal, the judgment against him has become final and executory, if his employer appeals, the aim is to have the accused employee absolved of the criminal responsibility and  judgment reviewed as a whole (Phil. Rabbit v. People,  2004).

A. Previous Acquittal In  Argel v. Pascua  (2001), it is an elementary rule that a decision once final is no longer susceptible to amendment or alteration except to correct errors which are clerical in nature. In criminal cases, a judgment of acquittal is immediately final upon its promulgation. However, in Vincoy v. CA (2004), a dismissal of a case during the PI does not constitute double jeopardy since a PI is not part of the trial and not the full display of evidence and it is just to engender a well-founded belief that an offense has been committed and accused is probably guilty to hold for trial. In People v. Velasco  (2000), the doctrine of double jeopardy may not be invoked after trial and may apply only when the Court finds that the criminal trial was a sham  because the prosecution was denied due process.

Acquittal Due to Legal Error In People v. Laggui  (1989), although the deicison of the court is erroneous, that decision may not be annulled or set aside because it amount to a judgment of acquittal. It became final and executory upon its promulgation. The State may not appeal its decision for it would place the accused twice in jeopardy of punishment for the offense in violation of his constitutional right against double jeopardy. This is reaffirmed in People v. CA (2004), when the Court stated that in the absence of a finding of mistrial, like when the trial was a sham, a  judgment of acquittal is final and is unappealable in the ground of double jeopardy, whether it happens at the trial court level or at the CA.

Exception to the Acquittal Rule In Merciales v. CA (2002), double jeopardy did not lie in this easance when case because the prosecutor was guilty of nonf easance

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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it failed to protect the interest of the State for he had not presented sufficient evidence and failed to present an available witness this also included the nonfeasance of the judge when he allowed the prosecutor to bungle the case.

B. Previous Dismissal In Sta. Rita v. CA  (1995) where an accused files a motion to dismiss with the express consent of accused the protection against double jeopardy does not apply.

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While both crimes required that (1) offended party is a virgin; and (2) that she must be over 12 and under 18. Consented abduction requires that that (1) the taking away must be with with her consent after solicitation or cajolery from the offender, and (2) the taking away of the offended party must be with lewd designs. While in qualified seduction (1) crime be committed by abuse of authority, confidence or relationship; (2) offender has sexual intercourse with a woman.

Exception to the Same Offense Test Two Instances Where Double Jeopardy Will Attach Even if Case was Dismissed with Express Consent 1. Where ground of dismissal is insufficiency of the 2.

evidence of prosecution (via Demurrer to Evidence ) Criminal proceedings have been unreasonably prolonged in violation of the right to speedy trial.

In People v. Degamo  (2003), the amendment of an information to charge a more serious offense is permissible permissible and does not constitute double jeopardy even where accused was already arraigned and pleaded not guilty to the charge, where basis of the more serious charge did not exist, but comes as a subsequent event (psychosis was involved).

Same Act (Statute and Ordinance) In Tupaz v. Ulep  (1999), when the court dismissed the case without asking the consent of accused  the dismissal of the case at the instance of the prosecutor is final, thus double  jeopardy applies. In Gorion v. RTC   (1992), the erroneous dismissal issued capriciously and arbitrarily deprive the State of a fair opportunity to present and prove its case, due process here was violated  such order is null and void. An invalid order of dismissal cannot be used as basis for double jeopardy.

SAME OFFENSE It can either be: 1. Same provision of law; 2. Different provisions of the same law; 3. Different statements As to the point of inquiry look at the elements of the two offenses

SAME ACT Must necessarily involve a statute and an ordinance

In People v. Relova  (1987), it was shown that Ordinance No. 1, s. 1974 of Batangas and Theft of Electricity under the RPC involved the same act – taking of electric current. It is because the ordinance seeks to punish unauthorized installed of electric wiring which was essentially to steal electric currents.

BENARES v. LIM (2009) Benares was charged with estafa, the PROS was given 15 days to formally offer evidence but it failed to do so. The case was dismissed for failure to prosecute the case. There was a motion to reconsider order of dismissal claiming difficulty to secure the documents. Benares opposed invoking double jeopardy. No double jeopardy as result of dismissal.  The dismissal in this case was due to the failure to prosecute. The delay here was not vexatious or oppressive, it follows that the right to speedy trial was not violated.

SUMMERVILLE v. EUGENIO (2007)

Look at the acts in space and time if committed on the same day or place.

Same Offense Test In People v. Saley   (1998), estafa and illegal recruitment are different offenses with distinct elements, where latter is a crime mala prohibita  where criminal intent is not  necessary for conviction while former is a crime mala in se  where criminal intent is necessary for conviction. As the acts giving rise to the two sets of offenses are common, if it involves two different offenses there is no violation of double jeopardy. In Perez v. CA (1988), there is also no double jeopardy between consented abduction and qualified seduction. Although they may have arisen with the same set of facts they are not identical offenses as would make applicable the rule no double jeopardy.

Whether the re-filing or reinstatement of the information constitutes double jeopardy. No. The October 24, 2001 order granting the withdrawal of the information   produces no effect. Then, the accused was not acquitted, nor there was a valid and legal dismissal or termination of the case.

TAN v. PEOPLE (2009) Three informations were filed against Tan, he moved dismiss the case alleging failure to prosecute . He alleged that his speedy trial was violated and that People failed to prosecute for an unreasonable length of time without any justification. The motion to dismiss was granted on violation of speedy trial. The order was elevated to the CA by People via certiorari.

Q. Did the certiorari violate the right against double jeopardy? NO. As a general rule, the dismissal of a criminal case resulting of acquittal made with express consent or upon his own motion, will not place accused in double jeopardy. This rule, however has two exception: 1. Insufficiency of evidence; 2. Denial of the right to speedy trial

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

The dismissal was based on speedy trial, but here double  jeopardy did not attach because dismissal was issued with grave abuse of discretion and was reversed by CA. Thus, where dismissal on ground of speedy trial was allegedly

capricious, certiorari lies from such order and does not involve double jeopardy as the petition challenges not the correctness but validity of the order of dismissal; such grave abuse discretion amounts to lack of jurisdiction, which prevents double jeopardy from attaching.

PEOPLE v. NAZARENO Three contracts between PNP and Beltra Industries, for the purchase and delivery of Caliber .45 pistols spawned the filing of the criminal criminal charge against Dir. Gen. Nazareno et al. COA found that the PNP procurement appeared to have been overpriced thus INF was filed by SB. The SB acquitted Nazareno et al after trial, it concluded that AFP prices did not offer sufficient basis to establish overpricing in the purchase of firearms by PNP. A judgment of acquittal is final and is no longer reviewable. It is also immediately executory and the State may not seek its review without placing the accused in double jeopardy. Further prosecution via an appeal from a judgment of acquittal is likewise barred because the government has already been afforded a complete opportunity to prove the criminal defendants culpability; after failing to persuade the court to enter a final judgment of conviction, the underlying reasons supporting the constitutional ban on multiple trials applies and becomes compelling. IN THIS CASE: The petition itself states that it was formally filed

under Rule 45 of the Rules of Court and seeks to reverse and set aside the decision of the Sandiganbayan. Thus, the petitions clear and unequivocal intention to seek a review on the merits of the Sandiganbayan judgment of acquittal puts it on a direct collision course with the constitutional proscription on double jeopardy.

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Q. Whether the reinstatement or revival of the case had put Quiambao under double jeopardy.

NO.  MTC no longer had the authority to dismiss because jurisdiction had already been acquired by SC. There is no double jeopardy   because the MTC, which ordered the dismissed of the criminal case, is not a court of competent  jurisdiction. Since MTC  had no jurisdiction to issue Order of Dismissal and Order Revival, there can be no double jeopardy. Since the MTC did not have jurisdiction to take cognizance of the case pending this Court's review of the RTC Order, its order of dismissal was a total nullity and did not produce any legal effect. Thus, the dismissal neither terminated the action on the merits, nor amounted to an acquittal.

ASISTIO v. PEOPLE (2015) Asistio was charged with violation of Sec. 46 of Cooperative Code of the Philippines (RA 6938) involving cooperative officers acquiring personal interest in conflict with their duty by defrauding the Cooperative which she was a Chairperson. Upon arraignment she entered a plea of not guilty. She moved to dismiss the case by way of Demurrer to Evidence. She argued among others that RTC Manila Br. 40 does not have  jurisdiction as the crime charged does not carry with it a sanction for which she can be held criminally liable. On October 14, 2008, RTC dismissed the case for lack of  jurisdiction for the crime charged is only punishable by imprisonment of 6 months to 1 year and a fine of not less than P1,000. OSG argues that RTC has jurisdiction over the case stating that Sec. 124 of RA 6938 applies which provides for a penalty of imprisonment for 5 years to 10 years and fine not less than P5,000. On August 31, 2011, CA reversed and remanded the case to RTC for further proceedings. Court settled that violation is punishable by imprisonment of 5 years to ten years and fine of P5,000 or both. Asistio posits three main arguments:

CEREZO v. PEOPLE (2011) Cerezo filed a complaint for libel, and information was filed, the OP-QC reversed earlier finding; recommended withdrawal of information, the RTC ordered dismissal of cases. SOJ reversed resolution and ordered refiling.  Respondents were not acquitted nor was there a valid and legal dismissal or termination of the case.

1.

That the order of remand to the RTC for further proceedings ignored the rule that dismissal on the charge on Demurrer to Evidence amounts to an acquittal and the dismissal is not appealable and

2.

That the remand would subject her to double  jeopardy.

3.

Her grant of demurrer and acquittal in a criminal case of falsification bars this case for Section 46 of RA 6938 is actually and necessarily included in the case for falsification of private documents.

PEOPLE v. QUIAMBAO (2014) STRADEC filed before OP a criminal complaint for violation for BP 68 against Quiambao. After PI, Quiambao, they were filed charged under two INF. RTC granted petition holding that there was no probable cause to hold them for trial and directed MTC to dismiss for want of probable cause. The other criminal case, MTC dismissed, MTC issued an Order dated recalling the Order of Dismissal and reinstating the criminal information

Issue 1: Was the dismissal of the case by Demurrer of Evidence by RTC resulted to acquittal, thus final and unappealable? unappealable?

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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Held:

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CHIOK v. PEOPLE (2015)

No. A Demurrer to Evidence challenges the sufficiency of the evidence raised whether it is competent to sustain the indictment or to support a verdict of guilt.

Chiok was charged with estafa. CA dis missed the appeal for he was found to have jumped bail when order of arrest was returned unserved.

It is true that the general rule is when there is a grant of a Demurrer to Evidence it operates as an acquittal, thus making it final and unappealable.

In 2007, CA acquitted Chiok, failure of the prosecution to prove his guilt beyond reasonable doubt. Chua filed a motion for reconsideration, it was denied MR.

In this case however, it must be noted that the RTC granted the demurrer and dismissed not for insufficiency of evidence, but for lack of jurisdiction over the offense charged.

Q. Whether or not the appeal from the judgment will place the accused in double jeopardy.

Finality of Acquittal Rule The RTC did not decide the case on its merits nor resolve issue of guilt or innocence based on evidence proferred by the prosecution. This being the case, RTC Order of Dismissal does not operate as an acquittal, hence may still be subject of an appeal.

A judgment of acquittal is final, unappealable, and immediately, executory upon its promulgation. Because the innocence of the accused has been confirmed by a final judgment the Constitution conclusively presumes that a second trial would be unfair.

Issue 2:

Exceptions: 1. Finding of mistrial; 2. Grave abuse of discretion on the part of the lower

Was the remand of the case to RTC violated her right against double jeopardy due to its earlier dismissal on the ground of lack of jurisdiction?

court in acquitting the accused.

Held:

IN THIS CASE: The exceptions do not apply, Chua present a report

No. The dismissal was with her consent for she moved for the dismissal of the case through a demurrer. It has been ordered with express consent thus double jeopardy did not attach. In short, the dismissal was granted upon her express consent.

submitted by Judge Panganiban showing irregularities in the BP 22 case against Chiok. Here, the basis of the acquittal is not on the credibility of physical evidence but of the testimony of Chua herself. Here, the State was not deprived of due process.

Issue 3: Is the offense under Sec. 46 of RA 6938 necessarily includes or is necessarily included in falsification of private document under Article 172 of RPC?

Held: No. The falsification case involved falsifying financial reports in relation to sales profits while the RA 6938 violation involves Jocelyn willfully acquiring personal interest or equity adverse to it, in violation of her duty and confidence reposed upon her by entering into a contract with Coca-Cola in her own personal capacity knowing that profits should have accrued to the Cooperative. In short, there is nothing common or similar between the essential elements of the two offenses. In addition, Sec. 46 violation is a crime malum prohibitum  and falsification of private documents is a crime mala prohibita. Since the Informations filed were for separate and distinct offenses double jeopardy does not apply, even if it involves a single act but if it involves two or more entirely distinct and unrelated provisions of law the prosecution of one is not an obstacle to the prosecution of the other. Thus, the acquittal and grant of demurrer in relation to the falsification case is not a bar to the prosecution of this case involving Sec. 46 of Corporation Code.

  A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived.

PROVISIONAL DISMISSAL A. Requisites for a Case to be Provisionally Dismissed 4. It must have the express consent of the accused; and 5. Notice must be given to the offended party; B. Effect of granting provision dismissal – the case may be revived, provided the revival is made within the following periods: 1. MTC Cases – 1 year from provisional dismissal; involving imprisonment not exceeding 6 years or fine any amount 2. RTC Cases – 2 years from provisional dismissal; involving offenses more than 6 years.

C. Effect of failure to revive within stated period The dismissal becomes permanent.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Provisional Dismissal It must be with the express consent of the accused. The ground can be anything as long as there is express consent. A provisional dismissal becomes permanent if it is not revived. In Condrada v. Bugtas (2003), the reinstatement of the case did not place accused in double jeopardy because it is clear from the records that the dismissal ordered by the trial court was a temporary dismissal and not permanent.

Requirements to Invoke Bar to Oppose Revival 1. The prosecution with the express conformity of the 2. 3. 4.

accused moves for a provisional dismissal of the case; or bot the prosecution and the accused moved; The offended party is notified of the motion for a provisional dismissal of the case; The court issues an order granting the motion and dismissing the case provisionally; and The public prosecutor is served with a copy of the order of the provisional dismissal.

These requirements are conditions sine qua non  to the application of the time-bar.

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There would be no need for PI , however if original witnesses have recanted or died a new PI must be conducted, this is also required when: Other persons are charged in the new criminal complaint Original charge has been upgraded from accessory to principal (People v. Lacson , 2003). 

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NOTE: There is never double jeopardy in provisional

dismissal because it is always with express consent of accused. Time-Bar Rule It is a special procedural limitation, which upon the lapse of such operates to extinguish the right of the State to prosecute the accused. The dismissal then becomes ipso facto permanent. However, the State may revive a criminal case provided that there is a justifiable necessity for the delay (People v. Lacson ).

PEOPLE v. PANFILO LACSON (2003) In March 29, 1999 there a provisional dismissal of cases  but on June 06, 2001, there was revival of the case the span was 2 years and 2 months and 6 days.

The public prosecutor cannot be expected to comply with the timeline unless served with a copy of the order of dismissal (People v. Lacson,  2003).

Section 8 was purposely crafted and included as a new provision to reinforce the constitutional right of the accused to a speedy disposition of the case.

Express Consent (People v. Lacson, 2003) It is given either viva voce or in writing. It is a positive, direct,

If the time-bar fixed in Section 8 were to be applied retroactively, this would mean that the State would be barred from reviving the case for failure to comply with the said timebar, which was yet to be approved by the Court three years after the provisional dismissal of the criminal case. In fine, to so hold would imply that the State was presumed to foresee and anticipate that three years after 1997, the Court would approve and amend the RRCP. The State would thus be sanctioned for its failure to comply with a rule yet to be approved by the Court.

unequivocal consent requiring no inference or implication to supply its meaning. Where the accused writes on the motion of a prosecutor for a provisional dismissal of the case stating, “ No objection”  or  or “With my conformity ”. ”. The writing amounts to express consent of the accused. Mere silence is not express.

Motion to Withdraw Information from Motion to Dismiss Motion to Withdraw Motion to Dismiss Both motions put an end to an action filed court. Attains finality after 15 days Becomes final after 15 days from receipt thereof, from receipt thereof, with without prejudice to the reprejudice to the re-filing of filing of the information the same case on such upon reinvestigation. order achieves finality, which is after the lapse of 1 year (MTC) or 2 years (RTC) depending on the imposable penalty. Not time barred, thus not Time barred. covered by Sec. 8, Rule 117.

Torres Jr v. Torres-Aguinaldo 451 SCRA 579 (2005) Revival of Dismissed Case It can be revived within the time-bar either by the State by: Refiling or By the filing of new information  

LOS BAÑOS v. PEDRO (2009) Pedro was charged with a violation of Article 22; Section 261(q), in relation to Sec. 264 of BP 881 or the OEC for carrying a loaded firearm without authorization from COMELEC. There was a checkpoint in Boac. Provincial prosecutor filed an INF with RTC. Pedro filed a MTQ   arguing that the INF contains averments which if true, would constitute a legal excuse or justification and/or that the facts charged do not constitute offense. RTC quashed INF and ordered the police and prosecutors to return the seized articles to Pedro. Representing the checkpoint team and with conformity of the public prosecutor, Los Banos  moved to reopen case  saying that COMELEC Certification was falsification and prosecution was deprived of due process. RTC re-opened the case for further proceedings. Filed a motion to reconsideration arguing that the dismissal had become

permanent citing Section 8, Rule 117.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

In his MR, Pedro manifested the exact date and time of the Marinduque provincial prosecutor’s receipt of the quashal order to be 2:35PM. December 10, 2001, and argued that based on this date, the provisional dismissal of the case became

permanent on December 10, 2002.

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ATTY. BONSUBRE, JR v. YERRO (2015) Atty. Bonsubre, Jr. filed a complaint for estafa against Yerro. Prosecution manifested that there was on-going settlement, a compromise agreement was reached but the prosecution failed to furnish the RTC a copy of such agreement. In Sept. 18, 2001, Order dismissing case in view of accused right to speedy trial.

Held:  Section 8, Rule 117 does not apply in this case. An examination of the whole Rule tells us that a dismissal based on a MTQ and a Provisional Dismissal are far different from one another as concepts, in features, and legal consequences. While the provision on provisional dismissal is found in Rule 117, it does not follow that MTQ results in provisional dismissal to which Section 8, Rule 117. A motion to quash is the mode by which an accused assails, before entering his plea, the validity of the criminal complaint or the criminal information filed against him for insufficiency on its face in point of law, or for d efect apparent on the face of the Information. The motion, as a rule, hypothetically admits the truth of the facts spelled out in the complaint or information.

Motion to Quash

Provisional Dismissal

It is filed by the accused to question the efficacy of the complaint or information filed against him or her.

A case may be provisionally dismissed at the instance of either the prosecution or the accused, or both, subject to the conditions enumerated under Sec. 8. Section 2, Rule 117, does not apply to a provisional dismissal. May be grounded on reasons other than the defects found in the information.

Sec. 2 of Rule 117, provides for the forma and content of a MTQ. Assails the validity of the criminal complaint or criminal information for defects or defenses apparent on the face of the information. Allowed before the arraignment (Sec. 1)

Allowed even when trial proper of the case is already underway provided that the required consents are present.

Thus, we conclude that Section 8, Rule 117 does not apply in this case, the case was remanded back to the RTC for the arraignment and trial of Pedro. Although the second paragraph of Section 8 states that the order of dismissal shall become permanent one year after the issuance thereof, without the case having been revived, such provision should be construed to mean that the dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor, as the public prosecutor cannot be expected to comply with the timeliness requirement unless he is served with a copy of the order of dismissal.

Contention of Bonsubre stated that there was no violation of the accused right to speedy trial as both parties mutually agreed to provisionally dismiss the case until full settlement of the obligation of compromise agreement.

There is no provisional dismissal of the case.  None of the requisites were met, while it may appear that Yarras consented to provisional dismissal of the case, the prosecution neither present the same for the court’s approval nor filed the required motion to that effect such that no order was in fact issued granting the provisional dismissal of the case. Hence, the assertion that the Yarras are estopped from invoking their right to speedy trial is without basis.

SALDARIEGA v. PANGANIBAN (2015) Two informations were filed against Saldariega for violation of RA 9165. Judge issued order provisionally dismissing the express consent of Saldariega. PO2 Villas field a motion to reopen the case. Judge granted reopening and set the cases for continuation. She argued that the provisional dismissal of the criminal cases is considered an acquittal. PO2 Villas has no personality to file motion t reopen. OSG argued that Saldariega died not object.

Q. Whether or not provisional dismissal is akin to acquittal? NO. When a criminal case is provisionally dismissed with the expressed consent of the accused, the case may be revived by State within the periods. Saldariega did not oppose.

Q. Is there violation of double jeopardy? NO. The provisional dismissal of the case does not operate as an acquittal since its dismissal was made with the express consent of the accused thus there is no double jeopardy.

Q. Does PO2 Villas have personality to file? YES. Moreover, in the case at bar, it must be noted that the accused is charged with a public crime, hence, it is a victim-less crime. Unlike in private crimes where the participation of the private offended party is generally required for the recovery of civil liability, in the instant case, there is no particular private offended party who can actually file the motion to revive. Hence, in some instances, as in this case, it is the arresting officer, PO2 Villas, who filed the motion to revive the case out of his sense of duty as a police officer and compelled by his sense of obligation considering that he knew his absence was the cause why the complaint was provisionally dismissed.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

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Q. Is it proper for Asilan to assail the sufficiency of the INF on  The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule.

Effect of Failure to File Motion to Quash or Allege Ground General Rule: It shall be deemed as a waiver on part of accused Exceptions: There is no deemed waiver when the ground is: 1. Lack of jurisdiction over subject matter; (3a) 2. Information does not charge any offense; (3b) 3. Criminal liability is already exintguished; (3g) 4. Double jeopardy; (3i) In Uy v. CA (1997), it appeared that court had no jurisdiction but it was only after 5 years after she was convicted that accused raised the issue of lack of jurisdiction. This was not a waiver  because question of jurisdiction of a court may be raised at any stage of the proceedings, thus, accused is not estopped questioning jurisdiction even on appeal.

When must a Motion to Quash be filed? It must be filed after arraignment, there can be no more quashal it is already motion to dismiss. For the information, it is only motion to quash but only to the point of arraignment. It is always in the best interest of the client for the accused to get the information. 

PEOPLE v. LAMBERTO RAFON (2007) It is too late in the day for appellant to raise this issue. He should have made his objection before he was arraigned. Section 9, Rule 117 of the Rules of Criminal Procedure provides, to wit: The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. As was held in Bugayong, appellant herein cannot be said to have been deprived of his right to be informed. He did not timely object to the alleged defects in the Informations and he actively participated in the trial, defending himself and confronting the witnesses against him. Hence, there was no denial of due process.

PEOPLE v. ASILAN (2012) Asilan was charged with Direct Assault with Murder for killing PO1 Adovas, RTC convicted him. CA affirmed. Asilan argued that his constitutional right to be informed was violated for when he was convicted of Murder, for the circumstance of treachery was not alleged in the INF against him.

the ground that there was failure to specifically allege therein how treachery was carried on? NO. It is now too late  for Asilan to assail the sufficiency of the INF on the ground that there was failure to specifically allege there how treachery was carried out. In this case, Asilan not only failed to question the sufficiency of the INF at any time during the pendency of the case in RTC. He also allowed the prosecution to present evidence proving the elements of treachery, thus deemed to have waived.

PEOPLE v. ANDRADE (2014) A random drug test was conducted National Bilibid Prison wherein urine samples were collected and subjected to drug testing and out of 38, 21 urine samples tested positive. All accused pleaded not guilty. In 2006, accused filed consolidated Motion to Dismiss  on the ground that facts alleged in the Information do not constitute a violation of Sec. 15 of RA 9165, further contending that they were never arrested for such drug. RTC granted motion to dismiss  finding no probable cause for the offense charged in the Information. CA affirmed. The complaint asserts that the CA erred because they were already arraigned. Accused averred that CA is correct.

Q. Can a motion to quash may be filed even after the accused have entered their plea? – YES The ground was Section 3(a), while under ordinary circumstances, such motion may no longer be allowed after arraignment because of their failure to raise any ground, however, since ground asserted is one of the exceptions

under Section 9, the timeliness, of the filing is immaterial. FANTASTICO v. MALICSE (2015) A case for Attempted Murder was filed against accused, they all pleaded not guilty. Trial court found Fantastico and Villanueva guilty for the attempted murder. Can they assert that the information filed against them was defective for failure to state all the elements of attempted murder? – NO. In any case, it is now too late for Fantastico and of Villanueva to assail the insufficiency of the information on the ground that the elements of the crime are lacking, they are already convicted and past arraignment.

PEOPLE v. CASTANAS (2016) Castanas was charged with rape. He was convicted through final judgment by RTC and affirmed by the CA. Castanas alleged that the INF against him did not clearly state the element of the crime as it did not state the gravamen of the crime of rape, that is sexual intercourse or sexual assault through insertion of any instrument or object.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

CRIMINAL PROCEDURE | REGINALD MATT SANTIAGO

Q.  Whether or not Castanas should not be convicted of the crime of Statutory rape, since it was not clearly charged in the information? GENERAL RULE:  An accused cannot be convicted of an offense

that is not clearly charged in the information. EXCEPTION: The right to assail the sufficiency of the information

or the admission of the evidence may be waived by accused. Jurisprudence provides that he should have raised this issue prior to his arraignment by filing a motion to quash. Failing to do so, he is deemed to have w aived any objection. So if accused fails to object to its sufficiency during trial and the deficiency was cured by competent evidence presented therein. Exceptions under Sec. 9 can still be raised during trial. 

If there was any missing allegation of carnal knowledge, Castanas had been adequately informed  of the nature and the cause of the accusation against him by the initial complaint filed against him together with the supporting documents. Castanas has belatedly first raised this issue on appeal. He failed to raise this issue before the trial court. Here, Castanas neither interposed objection to the presentation of the evidence of carnal knowledge.

IN THE CASE:

In fact, he actively participated during trial and was able to present his defense evidence. Therefore, Castanas should still be convicted.

From the Discussions of Atty. Melissa Romana P. Suarez, Criminal Procedure: A Lawyer’s Companion (2006) by Atty. Melissa Romana P. Suarez and Atty. Gil A. Dela Banda and Criminal Procedure: A Bar Lecture Series by Willard Riano (2016)

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