Special Penal Laws 2014

SPECIAL PENAL LAWS PRE-WEEK COMPANION A foresight to the bar exam By: Dean Gemy Lito L. Festin

A. SPECIAL PENAL LAWS IN GENERAL 1. PROBATION LAW- Presidential Decree No. 968 2. INDETERMINATE SENTENCE LAW- Act No. 4103 as amended 3. THE ANTI-GRAFT AND CORRUPT PRACTICES ACT- Republic Act No. 3019 4. THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002- Republic Act No. 9165 5. ANTI-VIOLENCE AGAINST WOMEN ANDTHEIR CHILDREN ACT OF 2004- Republic Act No. 9262 6. BOUNCING CHECKS LAW- Batas Pambansa Blg. 22 7. THE ANTI-FENCING LAW OF 1979- Presidential Decree No. 161 8. ILLEGAL POSSESSION OF FIREARM- PD 1866 as amended by R.A. 8294 9. ANTI-MONEY LAUNDERING ACT OF 2001- R.A. NO. 9160 as amended by R.A. 9194, R.A. 10167, R.A. 10168 and R.A. 10365, also known as “An Act Further Strengthening The Anti-Money Laundering Law” 10. THE ANTI- HAZING LAW 11. HUMAN SECURITY ACT OF 2007 (THE ANTI-TERRORISM LAW) - Republic Act No. 9372 12. THE ANTI-CHILD ABUSE LAW – Republic Act No. 7610 13. THE ANTI- TORTURE ACT-Republic Act No. 9745 14. THE ANTI-SEXUAL HARASSMENT ACT OF 1995- Republic Act No. 7877 15. THE ANTI-TRAFFICKING IN PERSONS ACT OF 2003- Republic Act No. 9208 16. PLUNDER as amended 17. THE ANTI WIRE-TAPPING ACT- Republic Act No. 4200 18. THE ANTI-CHILD PORNOGRAPHY ACT OF 2009- Republic Act No. 9775 19. THE ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009- Republic Act No. 9995 20. THE ANTI-DEATH PENALTY LAW- Republic Act No. 9346 21. JUVENILE JUSTICE AND WELFARE ACT OF 2006 - Republic Act No. 9344 22. HEINOUS CRIME LAW 23. THE ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY LAW OF 1974- Presidential Decree No. 532 24. THE ANTI-CARNAPPING ACT OF 1972- Republic Act No. 6539 25. THE ANTI-HIJACKING LAW- Republic Act No. 6235 26. (Amending) THE LAW ON ARSON -Presidential Decree No. 1613 27. THE ANTI-ALIAS LAW- Republic Act No. 6085 28. OBSTRUCTION OF JUSTICE- Presidential Decree No. 1829

____________________________________________ SPECIAL PENAL LAWS IN GENERAL ____________________________________________ 1. When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. In intent to commit the crime, there must be criminal intent; in intent to perpetrate the act, it is enough that the prohibited act is done freely and consciously. (Elenita C. Fajardo vs. People, G.R. No. 190889, January 10, 2011) 2. Although Republic Act No. 7610 is a special law, the rules in the Revised Penal Code for graduating penalties by degrees or determining the proper period should be applied. The penalty for Other Acts of Child Abuse is prision mayor in its minimum period. Although R.A. No. 7610 is a special law, the rules in the Revised Penal Code for graduating penalties by degrees or determining the proper period should be applied. 3. MALA IN SE and MALA PROHIBITA. a. In mala in se, the act committed in inherently wrong or immoral; in mala prohibita, the act is merely prohibited by law; b. In mala in se, good faith is a proper defense; in mala prohibita, good faith is not a defense; c. In mala in se, the stages of execution under Article 6 of the Revised Penal Code is considered in arriving at the proper penalty to be imposed; in mala prohibita, they are not; d. In mala in se, the degree of participation of the offenders under Title Two of the Revised Penal Code is taken into consideration on the imposition of penalty; in mala prohibita, it is not; e. In mala in se, the modifying circumstances are appreciated in determining the penalty imposable; in mala prohibita, they are not; f.

In mala in se, generally, the crimes are punished under the Revised Penal Code; in mala prohibita, generally, the crimes are punished under special penal laws.

4. Special laws which are intended merely as amendments to certain provisions of the Revised Penal Code are mala in se and still subject to its provision. 5. Plunder is a malum in se which requires proof of criminal intent as held in the case of Estrada v Sandiganbayan, G.R. No. 148560 November 19, 2001. Hence, the application of mitigating and extenuating circumstances in the Revised Penal Code to prosecute under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. x x x ____________________________________________ INDETERMINATE SENTENCE LAW, ACT NO. 4103 as amended [BAR Q. 2010, 2009, 2007, 2005, 2003, 2002, 1999, 1994, 1991, 1990, 1989, 1988] -

If a special law adopted penalties from the RPC, ISLAW will apply just as it would in felonies. ex. RA 7610 although a special law, adopted the penalty defined in RPC.

When ISLAW is not applicable? 1. Offenses punishable by death or life imprisonment.

2. 3. 4. 5. 6. 7. 8. 9.

Those convicted of treason, conspiracy or proposal to commit treason. Those convicted of misprision of treason, rebellion, sedition or espionage. Those convicted of piracy. Habitual delinquents. Those who escaped from confinement or those who evaded sentence. Those granted with conditional pardon and who violated the terms of the same. Those whose maximum period of imprisonment does not exceed one year. Those already serving final judgment upon the approval of this Act. o The imposition of indeterminate sentence is mandatory in criminal cases. o The law is not applicable if the penalty is destierro. Why? It does not involve imprisonment.

Rules: SPL Maximum term

RPC - shall not exceed the max. fixed by law

Minimum term

- shall not be less minimum fixed by law”

than

- “That, in view of the attending circumstances, could be properly imposed under the rules of the said Code “with the range of the penalty next lower to that prescribed by the Code.

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Rules of offsetting are not applicable in crimes punished under a special law. The presence of any generic aggravating and ordinary mitigating circumstances will not affect the proper imposition of the penalty. If the maximum term arrived and it does not exceed 1 year, ISLAW will not apply. If the sentence is imprisonment of 12 years and I day in violation of Comprehensive Drugs Act, the same is not correct as ISLAW mandates the Court to set the minimum and maximum term of the indeterminate sentence.

May the privileged mitigating circumstance of minority be appreciated in fixing the penalty that should be imposed even if the penalty imposed is originally an indivisible penalty? Yes. The ISLAW is applicable because the penalty which has been originally an indivisible penalty (reclusion perpetua to death), where ISLAW is inapplicable, became a divisible penalty (reclusion temporal) by virtue of the presence of the privileged mitigating circumstance of minority. (People vs. Allen Udtojan Mantalaba, G.R. No. 186227: July 20, 2011) _____________________________________________ PROBATION LAW [BAR Q. 2012, 2010, 2009, 2005, 2004, 2003, 2002, 2001, 1997, 1995, 1994, 1993, 1992, 1990, 1986] [BAR Q.1986,1989] The purposes of probation are as follows: (a) promote the correction and rehabilitation of an offender by providing him with individualized treatment; b) provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and (c) prevent the commission of offenses. CONSEQUENCE IF THE PROBATIONER VIOLATES ANY OF THE CONDITIONS OF PROBATION (SEC. 15)

The court may order the arrest of the probationer, hold an informal summary hearing and may revoke his probation. In which case, he has to serve the sentence originally imposed. Who are disqualified to avail of the benefits of Probation? 1. Sentenced to serve a maximum term of imprisonment of more than 6 years. 2. Convicted of any crime against National Security or the Public Order. 3. Who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than two hundred pesos. 4. Who have been once on probation under the provisions of this Decree. 5. Who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Sec. 33 hereof. 6. Who has perfected an appeal from the judgment of conviction. (Sec. 4) 7. Any person convicted of drug trafficking or pushing regardless of the penalty imposed by the Court. (Sec. 24 of R.A. No. 9165) -

If the convict had already perfected an appeal, an application for probation cannot be granted. “No application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction”

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By perfecting an appeal, petitioners ipso facto relinquished the alternative remedy of probation.

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Under Sec.4, “the filing of the application for probation shall be deemed a waiver of the right to appeal.”

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A waiver of the right to appeal from a judgment of conviction is NOT a waiver of the civil liability ex delicto.

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Probation may be granted whether the sentence imposed a term of imprisonment or a fine only (Sec. 4).

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An order granting or denying probation shall not be appealable.

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Prevailing jurisprudence treats appeal and probation as mutually exclusive because the law is unmistakable about it and, therefore, petitioner cannot avail herself of both.

What is the legal effect of probation? -

A conviction becomes final when the accused applies for probation.

REMINDERS ON DISQUALIFICATIONS: 1. Sentenced to serve more than 6 years – Exceptions: a. Under violation of Section 11 of RA 9165, accused FIRST-TIME OFFENDER may avail of suspended sentence. If there is a violation of any conditions, the court shall pronounce judgment of conviction. The court, however, may in its discretion: place the accused on probation (even if the sentence provided for under this Act is higher than that provided under existing law on probation). b. Principle in PP vs. Arnel Colinares: 

Arnel did not appeal from a judgment that would have allowed him to apply fro probation. He did not have a choice between appeal and probation.

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The Court, however, convicted Arnel of the wrong crime, frustrated homicide that carried a penalty in excess of 6 years. How can the Court expect him to feel penitent

over a crime, which as the Court now finds, he did not commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months. 

At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two (2) years and four (4) months maximum, he would have had the right to apply for probation.

2. National Security and Public Order - Probation is not applicable when the accused is convicted of INDIRECT ASSAULT (It is a crime against PUBLIC ORDER). 3. Previous Conviction of not less than one month and one day and/or a fine of not less than two hundred pesos. Ex. A person convicted for another crime with a penalty of 30 days imprisonment or not exceeding 1 month does not disqualify him from applying for probation. What is the period of probation? a. sentenced to a term of 1 year – shall not exceed 2 years; b. sentenced to a term of more than 1 year imprisonment – shall not exceed 6 years. _____________________________________________ THE ANTI-GRAFT AND CORRUPT PRACTICES ACT Republic Act No. 3019 [BAR Q. 2012, 2011, 2010, 2009, 2003, 2000, 1999, 1997, 1991, 1990, 1988, 1985] Who may be liable under Sec.3 of R.A. No. 3019? a. The law punishes not only public officers who commit prohibited acts enumerated under Sec. 3, but also those who induce or cause the public official to commit those offenses. b. Private persons found acting in conspiracy with public officers may be held liable for the applicable offenses found in Sec. 3 of the law. Sec. 3(b). Directly or Indirectly Requesting or Receiving any Gift, Present, Share, percentage, or Benefit, for Himself or for any other Person, in Connection with any Contract or Transaction Between the Government and any other Part, wherein the Public Officer in his Official Capacity has to Intervene under the Law. Elements under Sec. 3(b) of R.A. No. 3019 To be convicted of violation of Sec. 3(b) of R.A. No. 3019, the prosecution has the burden of proving the following elements: 1. the offender is a public officer; 2. who requested or received a gift, a present, a share, a percentage, or benefit; 3. on behalf of the offender or any other person; 4. in connection with a contract or transaction with the government; 5. in which the public officer, in an official capacity under the law, has the right to intervene. (CadiaoPalacios v. People, 582 SCRA 713, March 31, 2009) -

An accused may be charged for both offenses of direct bribery and violation of Sec.3(b) of R.A. No. 3019 because they have different elements.

Sec.3(e). Causing Any Undue Injury To Any Party, Including The Government, Or Giving Any Private Party Any Unwarranted Benefits, Advantage Or Preference In The Discharge Of His Official Administrative Or Judicial Functions Through manifest Partiality, Evident Bad Faith Or Gross Inexcusable Negligence. This

Provision Shall Apply To Officers and Employees Of Offices Or Government Corporations Charged With The Grant Of Licenses Or Permits Or Other concessions. In order to hold a person liable under Sec. 3 (e) of R.A. No. 3019, the following elements must concur: 1. the offender is a public officer; 2. the act was done in the discharge of the public officer’s official, administrative or judicial functions; 3. the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and 4. the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference. (Sison v. People, 614 SCRA 670, March 9, 2010) -

Proof of any of these three (manifest partiality, evident bad faith, or gross inexcusable negligence) in connection with the prohibited acts mentioned in Sec. 3(e) of R.A. No. 3019 is enough to convict a person with violation of Sec. 3 (e) of R.A. No. 3019. (Sison v. People, March 9, 2010)

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“Partiality” is synonymous with “bias” which “excites a disposition to see and report matters as they are wished for rather than as they are.” (Sison v. People, March 9, 2010)

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Manifest Partiality exists when the accused has a clear, notorious, or plain inclination or predilection to favor one side or one person rather than another. It is synonymous with bias, which excites a disposition to see and report matters as they are wished for rather than as they are. (Reyes v. People, August 4, 2010)

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Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or to cause damage. It contemplates a breach of sworn duty through some perverse motive or ill will. (Reyes v. People, August 4, 2010)

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Gross inexcusable negligence does not signify mere omission of duties nor plainly the exercise of less than the standard degree of prudence it refers to negligence characterized by the want of even the slightest case, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences in so far as other persons may be affected. (Sistoza v. Desierto, 388 SCRA 307)

There are two ways by which Sec. 3 (e) of R.A. No. 3019 may be violated – a. the first mode: by causing undue injury to any party, including the government, or b. the second mode: by giving any private party any unwarranted benefit, advantage or preference In order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another, in the exercise of his official, administrative or judicial functions. Ex. The private suppliers, which were all personally chosen by respondent, were able to profit from the transactions without showing proof that their prices were the most beneficial to the government. To hold a person liable under this section, the concurrence of the following elements must be established, viz: 1. that the accused is a public officer or a private person charged in conspiracy with the former; 2. that said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions; 3. that he or she causes undue injury to any party, whether the government or a private party; and 4. that the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.

Sec. 3(g). Entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. Elements under Sec. 3(g) of R.A. 3019: To be indicted of the offense under Sec. 3(g) of R.A. No. 3019, the following elements must be present: a. that the accused is a public officer; b. that he entered into a contract or transaction on behalf of the government; and c. that such contract or transaction is grossly and manifestly disadvantageous to the government (Guy v. People, 582 SCRA 108, March 20. 2009) A private person shall be held liable together with the public officer if there is an allegation of conspiracy. The lack of public bidding alone does not automatically equate to a manifest and gross disadvantage to the government. Sec. 3 (h). Directly or directly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. The essential elements of the violation of said provision are as follows: 1. That the accused is a public officer; 2. That he has a direct or indirect financial or pecuniary interest in any business, contract or transaction. He either: a. intervenes or takes part in his official capacity in connection with such interest; or b. is prohibited from having such interest by the Constitution or by law. (Teves v. The Commission on Elections, 587 SCRA 1, April 28, 2009) _____________________________________________ THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 Republic Act No. 9165 [BAR Q. 2010, 2009, 2007, 2006, 2005, 2004, 2002, 2000, 1998, 1996, 1992] ILLEGAL SALE OF DANGEROUS DRUGS (SEC. 5) The presentation in evidence of the “buy-bust” money is not indispensable for the conviction of an accused provided that the sale of marijuana is adequately proven by the prosecution. (People vs. Pascual, 208 SCRA 393) The elements necessary for the prosecution of illegal sale of drugs are: 1) the identity of the buyer and the seller, the object, and consideration; and 2) -

the delivery of the thing sold and the payment thereof.

What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. (People vs. Macatingag, G.R. No. 181037, January 19, 2009)\

DIFFERENTIATE PROSECUTION FOR ILLEGAL SALE FROM PROSECUTION FOR ILLEGAL POSSESSION OF DANGEROUS DRUGS.

In a prosecution for illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence. In a prosecution for illegal possession of a dangerous drug, it must be shown that (1) the accused was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the accused was freely and consciously aware of being in possession of the drug. (People vs. Darisan, G.R. No. 176151, January 30, 2009) ILLEGAL POSSESSION OF DANGEROUS DRUGS. (SEC.11) R.A. No. 6425 does not prescribe a single punishment for illegal possession of shabu and marijuana committed at the same time and in the same place. The prosecution would be correct in filing two separate Informations for the crimes of illegal possession of shabu and illegal possession of marijuana. a. The elements of the crime of illegal possession of dangerous drugs are as follow: a) the accused was in possession of the regulated drugs; b) the accused was fully and consciously aware of being in possession of the regulated drug; and c) the accused had no legal authority to possess the regulated drug. Possession may actual or constructive. (People vs. Eliza Buan, G.R. No. 168773, OCT. 27, 2006) b. What is the concept of “POSSESSION”? 1. Since the crime charged is mala prohibita, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. 2. Possession, under the law, includes not only actual possession, but also constructive possession. 3. Constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. Mere possession of a regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession- the onus probandi is shifted to the accused, to explain the absence of knowledge or animus possidendi”. (People vs. Gomez, G.R. No. 175319, January 15, 2010) In order to establish constructive possession, the People must prove that petitioner has dominion or control on either the substance or the premises where found. The burden of evidence is shifted to petitioner to explain the absence of animus possidendi. (People vs .Buan, G.R. No. 168773, OCT. 27, 2006) Illustrative case: BAR Q. [2002] B is not criminally liable. The facts clearly show the absence of animus possidendi or intent to possess which is an element of the crime of illegal possession of drugs. The accused was not fully and consciously aware of being in possession of the dangerous drug. ILLEGAL USE OF DANGEROUS DRUGS. (Sec.15) -

Section 15 of R.A. 9165 expressly excludes penalties for the use of dangerous drugs when the person is found to have in his possession quantity of any dangerous drug under Section 11. It states: “That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.”

BAR Q. [2005] The charge of possession of shabu under Section 11, Article II of RA 9165 is proper. The entrapment operation yielded the discovery of 100 grams of the said dangerous drug in his possession.

However, the charge of use of marijuana is not proper. Section 15 of Rep. Act No. 9165 is explicit. It excludes penalties for use of dangerous drugs when “the person tested is also found to have in possession such quantity of any dangerous drug” provided in Section 11 of such Act”. What does “CHAIN OF CUSTODY” mean? “Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition. (People vs. Ruiz Garcia, G.R. No.173480 February 25, 2009) Is strict compliance with the prescribed procedure essential? Strict compliance with the prescribed procedure is required. The Court recognized the following links that must be established in the chain of custody in a buy-bust situation: First, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; Second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; Third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and Fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. (People vs. Kamad, G.R. No. 174198, January 19, 2010) Mere lapses in procedures need not invalidate a seizure if the integrity and evidentiary value of the seized items can be shown to have been preserved. However, the failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be adequately explained. The justifiable ground for non-compliance must be proven as a fact. The court cannot presume what these grounds are or that they even exist. (People vs. De Guzman, G.R. No. 186498, March 26, 2010) The presumption of regular performance of duty is not conclusive in chain of custody cases and cannot, by itself, overcome the constitutional presumption of innocence. Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining. BAR Q. [2005] A person convicted of either drug trafficking or pushing cannot avail of the benefits of probation. If a positive finding for the use of dangerous drugs is found in the commission of a crime (Sec. 25), it shall constitute as a qualifying aggravating circumstance in the commission of the crime. A: Candido is guilty of homicide only. The act of stabbing was not consciously adopted but only accidental and therefore, negates treachery. However, since the crime was committed when he was under the influence of dangerous drugs, such act becomes a qualifying circumstance pursuant to Section 25, R.A. 9165. __________________________________________ ANTI-VIOLENCE AGAINST WOMEN ANDTHEIR CHILDREN ACT OF 2004 Republic Act No. 9262

[BAR 2011, 2010] DEFINE VIOLENCE AGAINST WOMEN AND THEIR CHILDREN. “It refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. (Section 3 of R.A. 9262) Section 3 states that violence against women and children includes, but is not limited to, the following acts: a) Physical Violence; b) Sexual violence; c) Psychological violence; d) Economic abuse. WHAT ARE THE ELEMENTS OF THE CRIME OF VIOLENCE AGAINST WOMEN? The elements of the crime of violence against women through harassment are: 1. The offender has or had a sexual or dating relationship with the offended woman; 2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and 3. The harassment alarms or causes substantial emotional or psychological distress to her. (Rustan Ang Y Pascua vs. Sagud, G.R. No. 182835, April 20, 2010) A TPO cannot be issued in favor of a man against his wife under R.A. No. 9292, known as the AntiViolence Against Women and Their Children Act of 2004. In one case, the judge was found guilty of gross ignorance of the law for issuing a Temporary Protection Order (TPO) in favor of a male petitioner. WHAT IS THE CONCEPT OF A BATTERED WOMAN SYNDROME? It refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. IS BATTERED WOMEN SYNDROME A PROPER DEFENSE? Section 26 of R.A. 9262 is explicit: “Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. PEOPLE VS. GENOSA G.R. No. 135981, January 15, 2004 RULING: More graphically, the battered woman syndrome is characterized by the so-called “cycle of violence,” which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase. During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the

time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition. The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this “good, gentle and caring man” is the real person whom she loves. A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. Illustrative Cases: BAR Q. [2010] A. Define “Battered Woman Syndrome.” It refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. B. What are the three phases of the “Battered Woman Syndrome”? The three phases are the following: a) tension-building phase b) acute battering incident c) tranquil and loving phase. C. Would the defense prosper despite the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code? Yes, R.A. 9262 expressly states that victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. ABUSES may BE COMMITTED BY ANOTHER THRU CONSPIRACY. (SHARICA MARI L. GO-TAN vs. SPOUSES TAN, G.R. No. 168852: September 30, 2008). THE CRIME OF VIOLENCE AGAINST WOMEN AND CHILDREN is considered as a public offense which may be prosecuted upon the filing of a complaint by any citizen having personal knowledge of the circumstances involving the commission of the crime. Under express provision of Section 27 thereof, being under the influence of alcohol, any illicit drug, or any other mind-altering substance shall not be a defense under this Act. II. PROTECTION ORDERS A protection order is an order issued under this Act for the purpose of preventing further acts of violence against a woman or her child specified in Section 5 of this Act and granting other necessary relief. The protection orders that may be issued are the barangay protection order (BPO), temporary protection order (TPO) and permanent protection order (PPO). _____________________________________________ BOUNCING CHECKS LAW Batas Pambansa Blg. 22 [BAR 2010 ’03,’02. ’96, 1990, ‘88’,’86]

BP.22 DOES NOT COVER MANAGER’S CHECK AND CASHIER’S CHECK. It is as good as the money it represents and is therefore deemed as cash. BP.22 COVERS ACCOMODATION OR GUARANTEE CHECK. BP.22 COVERS CROSSED CHECK since it is a negotiable instrument. It falls within the coverage of BP. 22. The Supreme Court ruled that BP. 22 considers the mere act of issuing an unfunded check as an offense not only against property but also against public order to stem the harm caused by these bouncing checks to the community. (Mitra vs. People, July 05, 2010) THE PRINCIPLE OF CONSPIRACY UNDER THE REVISED PENAL CODE IS APPLICABLE IN BP.22 WHICH IS A SPECIAL LAW. A. WAYS BY WHICH VIOLATION OF BP. 22 ARE COMMITTED. The gravamen of the offense punished by Batas Pambansa (B.P.) Blg. 22 is the act of making or issuing a worthless check or a check that is dishonored upon its presentation for payment – It is not the nonpayment of the obligation which the law punishes. The mere act of issuing a worthless check – whether as a deposit, as a guarantee or even as evidence of pre-existing debt – is malum prohibitum. THE ELEMENTS OF THE FIRST PARAGRAPH OF SECTION 1 OF BP.22 ARE AS FOLLOWS: 1. The accused makes, draws or issues any check to apply to account or for value; 2. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment . There is a prima facie evidence of knowledge of insufficiency of funds when the check was presented within 90 days from the date appearing on the check and was dishonored unless: a. such maker or drawer pays the holder thereof the amount due thereon within 5 banking days after receiving notice that such check has not been paid by the drawee, or b. makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice of non-payment. Is the 90 day-period to deposit the check an element of BP 22? No. That the check must be deposited within ninety (90) days is simply one of the conditions for the prima facie presumption of knowledge of lack of funds to arise, but it is not an element of the offense, and neither does it discharge the accused from his duty to maintain sufficient funds in the account within a reasonable time thereof. (Nagrarnpa vs. People, 386 SCRA 412). The notice of dishonor of a check may be sent to the drawer or maker, by the drawee bank, the holder of the check, or the offended party. (Ambito vs. People, 579 SCRA 68, February 13, 2009) ELEMENTS OF THE SECOND PARAGRAPH OF SECTION 1 OF BP.22. This way of violating B.P.22 suggests that at the time the check was issued, the issuer had sufficient funds in or credit with the drawee bank. However, the check was dishonored when presented for payment within 90 days from its date for failure to maintain sufficient funds or credit to cover the amount. The elements are as follows: a) any person, makes or draws and issues a check; b) such person has sufficient funds in or credit with the drawee bank; c) failure to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon; d) for which reason it is dishonored by the drawee bank.

COMPARISON OF VIOLATION OF BP 22 FROM ESTAFA UNDER PAR. 2 [D], ARTICLE 315, OF THE REVISED PENAL CODE. First, the elements of estafa under paragraph 2(d), Article 315 of the RPC are (1) the postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack of sufficiency of funds to cover the check; and (3) damage to the payee. (Cajigas vs. People, 580 SCRA 54, February 23, 2009) For violation of the “Bouncing Check Law”, deceit and damage are not essential or required. The essential element of the offense is knowledge on the part of the maker or drawer of the check of the insufficiency of his funds. The gravamen of the offense is the issuance of a bad check, not the non-payment of an obligation. Second, Article 315, Par.2 (d) is a crime against property because the issuance of the check is used as a means to obtain a valuable consideration from the payee. On the other hand, in BP. 22, the mere act of issuing an unfunded check is an offense against public order to stem the harm caused by these bouncing checks to the community. (Mitra vs. People, July 05, 2010). Third, in estafa, the failure of the drawer to deposit the amount necessary to secure payment of the check within 3 days from receipt of notice from the bank and or the payee or holder that said check has been dishonored for lack or insufficiency of funds is prima facie evidence of deceit constituting false pretense or fraudulent act. In B.P. 22, the failure of the drawer to pay in full the payee or holder within 5 banking days after receiving notice that the check has been rejected by the drawee bank gives rise to presumption of knowledge of insufficiency of funds or credit. Fourth, in estafa, the check is issued in payment of a simultaneous obligation to defraud the creditor. In B.P. 22, the check is issued in payment of a pre-existing obligation. Fifth, in estafa, an endorser who is with knowledge that the check is worthless and had acted with deceit is liable. In B.P. 22, the persons liable are the maker, drawer and the issuer but not an endorser. Lastly, since estafa is mala in se, good faith is a proper defense. B.P. 22 is mala prohibitum, it is punished by a special law and therefore, good faith is not a defense. “SIMULTANEOUS OBLIGATION” FROM “PRE-EXISTING” OBLIGATION. “Simultaneous obligation” as an element of estafa connotes that the issuance of a check is used as a means to obtain valuable consideration from the payee. Deceit is the efficient cause for defraudation. To defraud is to deprive some right, interest, or property by deceitful devise. (People vs.Quesada, 60 Phil. 515) In the issuance of a check in payment of a “pre-existing obligation”, the drawer derives no material benefit in return as its consideration had long been delivered to him before the check was issued. Since an obligation has already been contracted, the accused in this case obtain nothing when he issued the check, his debt for the payment thereof had been contracted prior to its issuance. There is deceit when one is misled -- by guile, trickery or by other means - to believe as true what is really false. (Dy vs. People, 571 SCRA 59, November 14, 2008) Damage as an element of estafa may consist in (1) the offended party being deprived of his money or property as a result of the defraudation; (2) disturbance in property right; or (3) temporary prejudice.

(Nagrampa vs. People, 386 SCRA 412). To constitute estafa, the act of postdating or issuing a check in payment of obligation must be the efficient cause of defraudation and, as such, it should be either prior to, or simultaneous with, the act of fraud. (Nagrampa vs. People, 386 SCRA 412) A PERSON MAY BE BOTH LIABLE FOR VIOLATION OF B.P. 22 AND ANOTHER PROVISION OF THE REVISED PENAL CODE. The filing of a criminal case under B.P. 22 shall not prejudice any liability arising from a felony committed under the Revised Penal Code. B. DEFENSES IN BP. 22 WHAT ARE THE POSSIBLE DEFENSES IN B.P. 22? 1. The presentation of the registry card, with an unauthorized signature, does not meet the required proof beyond reasonable doubt that the petitioner received such noticed, especially considering that he denied receiving it. (Suarez v. People 555, SCRA 238, June 19, 2008) 2. Presumption of knowledge of insufficiency of funds is not conclusive as it may be rebutted by full payment. (Tan vs. Philippine Commercial International Bank 552 SCRA 532, April 23, 2008) 3. Under B.P. Blg. 22, the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also establish that the accused was actually notified that the check was dishonored, and that he or she failed, within five (5) banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. 4. Prescription is a proper defense. The prescriptive period is 4 years reckoned from the lapse of the five (5) banking days from notice of dishonor within which to make good the check. 5. Forgery of the signature appearing on the check (Ilusorio vs. Court of Appeals, 353 SCRA 89) An agreement surrounding the issuance of dishonored checks is irrelevant to the prosecution for violation of Batas Pambansa Blg. 22. (Dreamwork Construction, Inc. v. Janiola 591 SCRA 466, June 30, 2009) LACK OF VALUABLE CONSIDERATION is not A PROPER DEFENSE IN VIOLATION OF B.P. 22. (Dreamwork Construction, Inc. v. Janiola 591 SCRA 466, June 30, 2009) NOVATION is not A PROPER DEFENSE IN B.P. 22. IS “STOP PAYMENT” A PROPER DEFENSE IN BP. 22? PAYMENT” or countermand, yet if it was clear from the statement of account that the check bounced due to insufficiency of funds, the drawer of the check is still liable.Chang vs. IAC, 146 SCRA 46 BAR Q. [2002] C. CORPORATION IN RELATION TO BP. 22 Section 1 of the law provides: “Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable The officer who is accused of signing the check must receive the notice of dishonor. Constructive notice to the corporation, who has a separate personality from its officer, is not enough. ADMINISTRATIVE CIRCULAR NO. 12-2000 refers to the imposition of penalties for violation of B.P. 22. It provides: Court has not decriminalized B.P. 22 violations, nor have removed imprisonment as an alternative penalty.

Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the judge. Should the judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not to be deemed a hindrance. (Lunaria vs. People, 5701 SCRA 572, November 11, 2008). ADMINISTRATIVE CIRCULAR NO. 13-2001 is a circular addressed to all judges which clarifies Administrative Circular No. 12-2000 on the penalty for violation of Batas Pambansa Blg. 22. It provides: The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22. The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violations of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law. Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. It is, therefore, understood that: 1. Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22; 2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; 3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment. _____________________________________________ THE ANTI-FENCING LAW OF 1979 Presidential Decree No. 1612 [BAR 2010, 2009, ’95, 1993, 1990, 1987, 1985] WHAT IS THE CRIME OF "FENCING". (Sec. 2) Section 2 of this Act defines fencing as: “It is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.” BAR Q. [1995] The elements of fencing are: (a) a crime of robbery or theft has been committed; (b) accused, who is not a principal or accomplice in the crime, buys, receives, possess, keeps, acquires, conceals, or disposes or buys and sells or in any manner deals in any article, item object or anything of value, which has been derived from the proceeds of said crime; (c) the accused knows or should have known that said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (d) there is, on the part of the accused, intent to gain for himself or for another.

BAR Q. [2010]. Yes, she is liable provided the prosecution can prove that Arlene knew or should have known that said item had been derived from the proceeds of the crime of robbery or theft. DIFFERENTIATE A FENCE FROM AN ACCESSORY TO THEFT OR ROBBERY. a. A fence is punished as a principal under P.D. No 1612 and the penalty is higher, whereas an accessory to robbery or theft under the Revised Penal Code is punished two degrees lower than the principal as a general rule. b. Fencing is a malum prohibitum and therefore, there is no need to prove criminal intent of the accused. Good faith is not a defense. In accessory to robbery or theft under the Revised Penal Code, intent is an element of the crime and therefore, good faith is a proper defense. c. All the acts of one who is an accessory to the crimes of robbery or theft are included in the acts defined as fencing. Corollarily, the accessory in the crimes of robbery or theft could be prosecuted as such under the Revised Penal Code or as a fence under PD No. 1612. If the fence is a partnership, firm, corporation or association, the president or the manager or any officer thereof who knows or should have known the commission of the offense shall be liable. WHAT IS THE PRESUMPTION OF FENCING? (SEC. 5) Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing Section 6 underscores the importance of securing a clearance or permit in dealing with the buy and sell activities. It thus mandates: “All stores, establishments or entities dealing in the buy and sell of any good, article item, object of anything of value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to the public, secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where such store, establishment or entity is located…”