Special Penal Laws Update 02

UPDATED SPECIAL PENAL LAWS ANTI-MONEY LAUNDERING ACT OF 2001 (Republic Act No. 9160) Background: Immediate Impetus for Passage of the Act: Imposition if a sanction at the behest of the Financial Action Task Force (FATF), the Paris based Money-laundering watchdog of the Group of 7 (OECD): (a) Isolation of all incoming and outgoing Philippine transaction, including transfer of Philippine transactions from the computerized system to manual process; (b) Imposition of nearly hefty documentary and regulatory requirements for investments into the Philippines. WHAT ARE THE TRANSACTIONS COVERED BY ANTI-MONEY LAUNDERING ACT In excess of P4.0 Million, for single, series, or combination of transactions, within 5 consecutive banking days. EXCEPT THOSE: (i) With properly identified client, when amount commensurate with business or financial capacity of such client; and (ii) Those with an underlying legal or trade obligation, purpose, origin or economic justification. INSTITUTIONS COVERED BY ANTI-MONEY LAUNDERING ACT (a) Banks and other entities, their subsidiaries and affiliates, supervised/regulated by BSP; (b) Insurance companies and other entities supervised regulated by Insurance Commissioner; (c) SEC supervised/regulated: - Securities dealers, brokers, salesman, investment houses, and other entities managing securities or rendering services as investment agents, advisor or consultants; - Mutual funds, closed-end investment companies, common trust funds, pre-need companies, and other similar entities; - Foreign exchange corporations, money changers, money payment, remittance, and transfer companies, and other similar entities; and

- Other entities administering/dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property. OBLIGATIONS OF INSTITUTIONS COVERED BY ANTI-MONEY LAUNDERING ACT (a) Establish and record, and maintain a system of verifying, the true identities of clients, including the legal existence and organizational structure of a corporate client, and their representative, based on official documents; (b) Keep records for five (5) years; (c) Report "covered transactions" to Anti- Money Laundering Council, within five (5) working days from occurrence, without thereby violating Secrecy of Bank Deposit Act, FCDU Law, and the General Banking Law of 2000' BUT: Cannot otherwise communicate to any person or media, fact of report covered transaction, or the contents of report. ALSO: Fact of reporting to Anti- Money Laundering Council cannot also be published/aired by mass media, electronic mail, or other similar devices. (d) Prohibited: Anonymous accounts, accounts under fictitious names and all other similar accounts. HOWEVER: numbered accounts allowed. (e) Bangko Sentral ng Pilipinas may conduct annual testing of banking institutions solely limited to the determination of the existence and true identity of the owners of such account. MONEY-LAUNDERING CRIME Committed when the proceeds of an "unlawful activity" are transacted to make them appear to have originated from legitimate sources, by the following acts: (a) Transacting or attempting to transact, with monetary instrument or property, knowing it represents/involves/relates to proceeds of any "unlawful activity." (b) Facilitating money-laundering referred to in item (a) above, by knowingly performing or failing to perform an act; (c) Failing to disclose and file report with Anti-Money Laundering Council of any monetary instrument or property as required under the law.

UNLAWFUL ACTIVITIES Any act or omission or series or combination thereof, involving or having relation to the following: 1. 2. 3. 4.

Kidnapping for ransom Drug trafficking Graft and corrupt practices Plunder 2

5. Robbery and extortion 6. Jueteng and masiao 7. Piracy on the high seas 8. Qualified theft 9. Swindling 10. Smuggling 11. Violations of the E-Commerce Act of 2000 12. Hijacking, destructive arson and murder, including acts of terrorism against non-combatant persons and similar targets 13. Fraudulent practices under the Securities Regulation Code of 2000 14. Felonies or offenses of similar nature that are punishable under the penal laws of other countries. NOTE: (i) There can be separate convictions for money-laundering offense and unlawful activity constituting it (ii) Unlawful activity shall be given precedence over money laundering charge, without prejudice to freezing and other remedies provided by Act. JURISDICTION (i) "All cases on money laundering" shall be within the jurisdiction of Regional Trial Courts (RTC); (ii) But those committed by public officers and private persons in conspiracy with such public officers shall be within the jurisdiction of Sandiganbayan. POLICY AGAINST POLITICAL HARRASSMENT No money-laundering case can be filed, nor can there freeze of account, against any candidate for public office during an election campaign. PENALTIES AND OTHER CONSEQUENCES (a) Fines and imprisonment for conviction of money-laundering offenses; (b) Civil and Criminal forfeiture of money instrument or property for any money laundering offense; (c) Convicted offender to pay an amount equal to value of monetary instrument or property ordered forfeited when order of forfeiture cannot be effected. FREEZE OF ACCOUNT (a) Anti-Money Laundering Council, on determining probable cause that any account is in anyway related to an unlawful activity, any issue order to freeze, effective immediately and for a period not exceeding 15 days; (b) Freeze order will bring simultaneous notice to depositor, who will have 72 hours to explain why order should be lifted.

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(c) Anti-Money Laundering Council has 72 hours to dispose of depositor's explanation, and if it fails within 72 hours to act, freeze order shall automatically be dissolved. (d) Freeze order may be extended beyond 15 days only with court order, but 15-day period tolled pending the court's decision to extend. (e) Only Court of Appeals or Supreme Court can issue Temporary Restraining Order or writ of injunction on freeze order EXAMINATION OF ACCOUNTS (a) Notwithstanding provisions on secrecy of bank deposit account to the contrary, Anti-Money Laundering Council may seek court order to inquire into or examine a particular deposit or investment with a banking or non-bank financial institution. (b) Basis of Order: Upon probable cause that the deposits or investments are in any way related to a money-laundering offense. (c) There can be no examination of deposits or investments made prior to the effectivity of the Act ANTI-MONEY LAUNDERING COUNCIL COMPOSITION OF ANTI-MONEY LAUNDERING COUNCIL . . .

Bangko Sentral ng Pilipinas Governor, as Anti-Money Laundering Chairman Insurance Commission Chairman Security and Exchange Commission Chairman

POWERS OF ANTI-MONEY LAUNDERING COUNCIL (a) Require and receive covered transactions reports; (b) Order appropriate Supervising Authority or covered institution, to determine true identity or owner of money instrument or property subject of a covered transaction, when on basis of substantial evidence, to be the proceeds of unlawful activity. (c) Institute forfeiture and other remedial proceedings through the Solicitor General; (d) File complaints with Department of Justice or Ombudsman for prosecution of money-laundering offenses; (e) Initiate investigation of covered transactions, money-laundering activities and other violations of the Act; (f) Freeze any monetary instrument or property alleged to be proceeds of any unlawful activity; (g) Implement measures to counteract money laundering; (h) To assist foreign governments, and itself seek such assistance antimoney laundering operations; (i) Develop educational programs on the pernicious effects of money laundering; (j) Enlist assistance of government agencies and corporations in undertaking anti-money laundering operations; (k) Seek court order to inquire into or examine any particular deposit with any banking or non-bank financial institution; and (l) Issue implementing rules and regulations, subject to the review of a congressional oversight committee. 4

INDETERMINATE SENTENCE LAW (Act No. 4103 as amended by Act No. 4225) WHEN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE IS NOT ENTITLED TO THE APPLICATION FOR INDETERMINATE SENTENCE LAW Accused-appellant cannot avail of the benefits of the Indeterminate Sentence Law because Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with reclusion perpetua. (People v. Aquino; GR 125906, Jan. 16, ’98) APPLICATION OF INDETERMINATE SENTENCE LAW EXPLAINED In the case of People vs. Gabres, the Court has had occasion to so state that — "Under the Indeterminate Sentence Law, the maximum term of the penalty shall be 'that which, in view of the attending circumstances, could be properly imposed' under the Revised Penal Code, and the minimum shall be within the range of the penalty next lower to that prescribed' for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. "The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months . . ." (People v. Saley; GR 121179, July 2, ’98)

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INDETERMINATE SENTENCE LAW; WHEN APPLICABLE. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. The more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same" We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified under the rule of contemporanea expositio. Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, we have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in the effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.) A divergent pedantic application would not only be out of context but also an admission of the hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its construction of Act No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we have held that what is considered is the penalty actually imposed and not the penalty imposable under the law, and that reclusion 6

perpetua is likewise embraced therein although what the law states is "life imprisonment." What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the principles of literal interpretation, which have been rationalized by comparative decisions of this Court; of historical interpretation, as explicated by the antecedents of the law and related to contemporaneous legislation; and of structural interpretation, considering the interrelation of the penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation. (People v Martin Simon)

WHEN INDETERMINATE SENTENCE LAW IS NOT APPLICABLE a. b. c. d. e. f. g. h. exceed one year. i.

Offenses punished by death or life imprisonment. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115). Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art. 139), or espionage (Art. 117). Those convicted of piracy (Art. 122). Habitual delinquents (Art. 62, par. 5). Those who escaped from confinement or those who evaded sentence. Those granted conditional pardon and who violated the terms of the same (Art. 159). (People v. Corral, 74 Phil. 359). Those whose maximum period of imprisonment does not Those who are already serving final judgment upon the approval of the Indeterminate Sentence Law.

RECIDIVISTS ARE ENTITLED TO INDETERMINATE SENTENCE Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L-28547, Feb. 22, 1974). Offender is not disqualified to avail of the benefits of the law even if the crime is committed while he is on parole. (People v. Clareon, CA 78 O.G. 6701, Nov. 19, 1982).

(Bacar v. De Guzman)

ACTUAL DETENTION OR LOCKING UP AN ESSENTIAL ELEMENT OF KIDNAPPING Actual detention or "locking up" is the primary element of kidnapping. If the evidence does not adequately prove this element, the accused cannot be held liable for kidnapping. In the present case, the prosecution merely proved that apellant forcibly dragged the victim toward 7

a place only he knew. There being no actual detention or confinement, the appellant may be convicted only of grave coercion. (People -vs- Astorga; GGR 110097, December 22, 1997) ELEMENTS OF GRAVE COERCION Grave Coercion or coaccion grave has three elements: a. that any person is prevented by another from doing something not prohibited by law, or compelled to do something against his or her will, be it right or wrong; b. that the prevention or compulsion is effected by violence, either by material force or such a display of it as would produce intimidation and, consequently, control over the will of the offended party; and c. that the person who restrains the will and liberty of another has no right to do so or, in other words, that the restraint is not made under authority of a law or in the exercise of any lawful right. (People -vs- Astorga) A PERSON MAY BE CONVICTED OF GRAVE COERCION ALTHOUGH THE CHARGE IS KIDNAPPING The Information, dated March 24, 1992, filed against Astorga contains sufficient allegations constituting grave coercion, the elements of which were sufficiently proved by the prosecution. Hence, a conviction for said crime is appropriate under Section 4, Rule 120 of the 1988 Rules on Criminal Procedure. (People -vs- Astorga) WHEN THE ACCUSED IS AN ACCOMPLICE AND NOT A PRINCIPAL The evidence merely points out that Corbes looked for a jeep to be used as getaway vehicle of the robbers and, to that end, he intentionally sought out and convinced Manuel Vergel to act as driver. Moreover, he went with Vergel and Benny to Caloocan City where the Robbery was staged. We have also held that the liability of one whose participation was limited to looking for a banca and providing one to a gang of bank robbers, or one who went with the actual perpetrators of a crime without conspiring with them, is only that of an accomplice. Where the quantum of proof required to established conspiracy is lacking, the doubt created as to whether accused acted as principal or accomplice will always be resolved in favor of the milder form of liability, that of a mere accomplice. Besides, in several cases wherein the Court confirmed the existence of conspiracy, some accused were held liable as mere accomplices only because their role in the commission of the crime was not indispensable; in other words, minor. Courts sometimes draw the inference of guilty participation in the criminal design from concerted acts in the consummation of the criminal act 8

and from the form and manner in which assistance is rendered. To reiterate, in case of doubt, the courts naturally lean to the milder form of responsibility. (People -vs- Corbes; GR 113470, Mar. 26, 1997) WHEN IS DONE IN CASE OF ROBBERY BUT UNKNOWN TO OTHERS ONE MAY NOT BE HELD GUILTY OF ROBBERY WITH HOMICIDE Furthermore, we reduce appellants' liability to the crime of robbery only. It was not established by the evidence that the other accused, who are at large, had agreed to kill if necessary to carry out successfully the plan to rob. On the contrary, the records show that one of the robbers berated the gunman for having shot the security guard. Therefore, what appellants may be said to have joined was merely the criminal design to rob, which makes them accomplices. Their complicity must accordingly be limited to the robbery, not to the killing of Timoteo Palicpic. Waiting only at the parked jeep at 8th Avenue could not have given them the opportunity to prevent the killing, as is required of one seeking relief from liability for assaults committed during the robbery. The Court had occasion to rule that the jeep driver, who was unaware of the killing perpetrated inside the building as he stayed always near his jeep, could not be deemed a co-conspirator in the killing of the guards, as the killing was not part of the original plan but arose only during the exigency of the moment. ( People -vs- Corbes) WHEN A JUDGE IS NOT GUILTY OF UNJUST JUDGMENT In the absence of any indication 1) that the trial court's conclusion is based entirely on speculations; 2) that there is a grave abuse of discretion; 3) that the court, in making its findings went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee, or; that the judgment is based on a misapprehension of facts, or; that the presiding judge is blatantly biased, the general rule that the trial court's findings of fact should be given great weight still stands. (Bacar -vs- De Fuzman; A.M. No. RTC 96-1349, April 8, 1997)

WHEN IGNORANCE OF THE LAW IS PRESENT This Court has held that when the law is so elementary, not to know it or to act as if one does not know it, constitute gross ignorance of the law. Likewise, that unaware of and unfamiliarity with the application of the Indeterminate Senetence of the law and duration and graduation of penalties merits disciplinary action, from reprimand to removal. (Bacar -vs- De Guzman)

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RECLUSION PERPETUA/Life Imprisonment In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme Court declared that despite the amendment of Article 27 of the Revised Penal Code, reclusion perpetua remained an indivisible penalty. Hence, the penalty does not have any minimum, medium and maximum period. Hence, there is no such penalty of medium period of reclusion perpetua. (People versus Tiburcio Baculi, 246 SCRA) Suppose the court imposed a penalty of 25 years of reclusion perpetua for the crime of rape and the accused did not appeal, does the judgment become final and executory? No. such judgment is null and void because it imposed a non-existent penalty. Hence, the court may nevertheless correct the penalty imposed on the accused, that is, reclusion perpetua, it is merely performing a duty inherent in the court. (People versus Nigel Gatward, GR No. 119772-73, February 7, 1997) The penalty of reclusion perpetua is different from life imprisonment. The former carries with it accessory penalties, whereas life imprisonment does not carry with it any accessory penalties; reclusion perpetua is that provided for under the Revised Penal Code and under crimes defined by special laws using the nomenclature under the Revised Penal Code ; life imprisonment is that provided for violations of the Revised Penal Code. Reclusion Perpetua may be reduced by one or two degrees while life imprisonment cannot be so reduced. (People -vs- Rolnando Madriaga, GR No. 82293, July 23, 1992.) Which is more burdensome, life imprisonment or reclusion perpetua? Reclusion perpetua has accessory penalties while life imprisonment does not. However, life imprisonment does not have a fixed duration or extent while reclusion perpetua has a duration of from twenty years and one day to forty years. life imprisonment may span the natural life of the convict. (People -versus- Rallagan, 247 SCRA 537) Where the law violated provides for the penalty of reclusion perpetua, impose the said penalty and not the penalty of life imprisonment. Where the law imposes the penalty of life imprisonment, do not impose reclusion perpetua. (People -vs- Rolando Madriaga, 211 SCRA 698) There we also said that "if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason and basis for existence." The imputed duration of thirty (30) years of reclusion perpetua, therefore, only serves as the basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. (People -vs- Aspolinar Raganas, et al GR No. 101188, October 12, 1999) Where the accused committed qualified violation of PD 704 (fishing with the use of explosives), the imposable penalty for which is life imprisonment to death. If the accused is entitled to a mitigating circumstance of voluntary surrender, the court should impose life imprisonment applying, in a suppletory character, Articles 13 and 63 of the Revised Penal Code. (People -vs- Priscilla Balasa, GR No. 106357, September 3, 1998) 10

If, during the trial, the accused was detained but, after trial, he was meted the penalty of reclusion perpetua, he is still entitled to the full credit of his preventive imprisonment because Article 29 of the Revised Penal Code does not distinguish between divisible and indivisible penalties. (People -vs- Rolando Corpuz, 231 SCRA 480)

QUALIFIED THEFT Under Article 309 of the Revised Penal Code, the maximum of the penalty for qualified theft is prision mayor to reclusion temporal. However, under Article 310 of the Revised Penal Code, the penalty for the crime shall be two (2) degrees higher than the specified in Article 309 of the Code. Under Article 74 of the Revised Penal Code, the penalty higher by one degree than another given penalty, and if such higher penalty is death, the penalty shall be reclusion perpetua of forty (40) years with the accessory penalties of death under Article 40 of the Revised Penal Code. The accused shall not be entitled to pardon before the lapse of forty (40) years. (People -vs- Fernando Canales, 297 SCRA 667) COMPARE: The Supreme Court affirmed the judgment convicting the accused of qualified theft in the amount of P6,000,000.00 and the imposition of the penalty of reclusion perpetua together with the accessory penalties provided by law. (People -vs- Ruben Sison, January 19, 2000)

Presidential Decree 818 It is different situation, however, where the penalty imposed on the accused is dependent upon the number of years for every specific amount subject of the felony as in estafa under Article 315 (2)(d) of the Revised Penal Code, as amended by PD 818. Where the accused was found guilty of estafa under the aforesaid laws, involving the aggregate amount of P100,000.00, the accused may be meted the penalty of twenty-seven (27) years of reclusion perpetua. (People -vs- Roberto Tongko, GR NO. 123567, June 5, 1998) PD 818 provides: "Sec. 1 - Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2 (d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by: 1st. The penalty of reclusion temporal if the amount of the fraud is over P12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos but the total penalty which may be imposed shall in no case exceed thirty years. in such cases, and in connection with the accessory penalties which may be

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imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua; Here, the complainant was defrauded in the amount of seven hundred thousand (P700,000.00) pesos. The fact that the amount involved in the instant case exceeds P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead the matter would be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This accords with the rule that penal laws are construed in favor of the accused. Applying the above-cited provision, accused shall be meted an indeterminate sentence, the maximum of which shall be taken from the maximum period of the basic penalty, that is, reclusion temporal, to be imposed in its maximum period, plus one (1) year for each additional P10,000.00 of the amount of the fraud, but the total penalty shall not exceed thirty (30) years. On the other hand, the minimum of the indeterminate sentence shall be within the range of the penalty next lower in degree to that prescribed by the code for the offense, without first considering any modifying circumstance nor the incremental penalty for the amount in excess of twenty two thousand (P22,000.00) pesos. Such penalty is prision mayor with a duration of six (6) years and one (1) day to twelve (12) years. Hence, the accused should be meted and indeterminate penalty of twelve (12) years of prision mayor, as minimum, to thirty (30) years of reclusion perpetua, as maximum, and to indemnify complainant Johnny Sy in the amount of P700,000.00. (People -vs- Elpidio Hernando, et al., 317 SCRA 617, pages 629-631)

THE PROBATION LAW (P.D. 968) and its AMENDMENTS PROBATION A disposition under which a defendant, after conviction and sentence, is subject to conditions imposed by the Court and under the supervision of a probation officer. PURPOSES OF PROBATION: a. to promote the correction and rehabilitation of an offender by providing him with personalized community based treatment; b. to provide an opportunity for his reformation and reintegration into the community; c. to prevent the commission of offenses. SUBMISSION OF PETITION AND TIME OF FILING OF PETITION

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The petition or application for probation must be filed directly with the Court which sentenced the accused within 15 days from date of promulgation of the decision convicting the accused, or in short within the period to appeal otherwise the judgment shall become final and the accused shall be deemed to have waived his right to probation. EFFECT OF FILING OF PETITION Upon filing of petition for probation, the court shall suspend the execution of sentence. Likewise, the filing of a petition for probation shall be deemed a waiver of the right to appeal and in case an appeal is made immediately after conviction, a filing of petition for probation still within the period to appeal, that is within fifteen days from date of promulgation shall be deemed a withdrawal of the appeal. PENDING RESOLUTION OF PETITION, WHAT HAPPENS TO THE ACCUSED-PETITIONER. 1. if the accused, prior to the promulgation of decision of conviction is out on bail, he may be allowed on temporary liberty under his bail filed in said case; 2. if he is under detention, upon motion, he may be allowed temporary liberty, if he cannot post a bond, on a recognizance of a responsible member of a community who shall guarantee his appearance whenever required by the court. IN CASE PETITIONER FOR PROBATION CANNOT BE PRODUCED BY THE CUSTODIAN ON RECOGNIZANCE, WHAT HAPPENS? The custodian must be asked to explain why he should not be cited for contempt for failing to produce the probationer when required by the court; Summary hearing will be held for indirect contempt, and if custodian cannot produce the petitioner, nor to explain his failure to produce the petitioner, the custodian on recognizance shall be held in contempt of court. WHAT IS A POST SENTENCE INVESTIGATION REPORT? It is a report of the Parole and Probation Officer after conducting post sentence investigation and interviews containing the circumstances surrounding the offense for which the petitioner was convicted. The findings should be drawn from the court records, police records, statement of defendants, the aggrieved party and other persons who may know the petitioner and all other matters material to the petition. It will also include the psychological and social information regarding the probationer; evaluation of the petitioner; suitability for probation; his potential for rehabilitation; and may include the program for supervision and suggested terms of conditions of probation and a recommendation either to deny or grant the probation. 13

WHAT ARE THE MANDATORY CONDITIONS OF PROBATION? a. to present himself to the probation officer concerned for supervision within 72 hours from receipt of said order and b. to report to the probation officer at least once a month during the period of probation. WHAT ARE THE OTHER CONDITIONS OF PROBATION? a. cooperate with a program of supervision; b. meet his family responsibilities; c. devote himself to a specific employment and not to charge said employment without prior written approval of the probation officer; d. comply with a program of payment of civil liability to the victim of his heirs; e. undergo medical, psychological or psychiatric examination and treatment and/or enter and remain in a specific institution, when required for that purposes; f. pursue a prescribed secular study or vocational training; g. attend or reside in a facility established for instruction or recreation of persons on probation; h. refrain from visiting houses of ill-repute; i. abstain from drinking intoxicating beverages to excess; j. permit the probation officer or an authorized social worker to visit his home and place of work; k. reside at premises approved by the court and not to change his residence w/o prior written approval; and l. satisfy any other condition related to the rehabilitation of the probationer and not unduly restrictive of his liberty or incompatible with his freedom of conscience. OUTSIDE TRAVEL OF PROBATIONER A probationer who desires to travel outside the jurisdiction of the city or provincial probation officer for not more than 30 days, the permission of the parole and probation officer must be sought. If for more than thirty days, aside from the permission of the parole and probation officer, the permission of the court must likewise be sought. EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION a. If the accused appeals his conviction for the purpose of totally reversing his conviction, he is deemed to have waived his right to probation. b. The rule that if the accused appeals his conviction only with respect to the penalty, as he believes the penalty is excessive or wrong, as the penalty is probationable, and the appellate court sustains the accused may still apply 14

for probation, has already been abandoned. An appeal therefore, irrespective of its purpose, to overturn the entire decision or only with respect to penalty is a waiver to probation, has already been abandoned. An appeal therefore, irrespective of its purpose, to overturn the entire decision or only with respect to penalty is a waiver to probation. CONFIDENTIALITY OF RECORDS OF PROBATION The investigation report and the supervision and history of a probationer obtained under PD No. 968 and under these rules shall be privileged and shall not be disclosed directly or indirectly to anyone other than the probation administration or the court concerned the court which granted the probation or where the probation was transferred may allow the probationer to inspect the aforesaid documents or his lawyer, whenever such disclosure may be desirable or helpful to them. Any government office may ask for the records of probation from the court for its official use or from the administrator. Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE OF PROBATION RECORDS. The penalty of imprisonment ranging from six months and one day to six years and a fine ranging from hundred to six thousand pesos shall be imposed upon any person who violates Section 17 hereof.

MODIFICATION OF CONDITION OR PERIOD OF PROBATION The court, on motion, or motu propio may modify the conditions of probation or modify the period of probation as circumstances may warrant. WHO ARE DISQUALIFIED TO UNDERGO PROBATION 1. Those sentenced to serve a maximum term of imprisonment of more than six years. 2. Those convicted of any offense against the security of the state; 3. Those who have been previously convicted by final judgment of an offense punished by imprisonment of not less than one moth and one day and/or a fine of not less than P200.00; 4. Those who have been once on probation under the provisions of this decree. PERIOD OF PROBATION 1. if the probationer has been sentenced to an imprisonment of not more than one year, the probation shall not exceed two years; 2. in all other cases, not to exceed six years; 3. in case the penalty is fine, the probation shall not be less than the period of subsidiary imprisonment nor more than twice of the subsidiary imprisonment. 15

AMENDMENT TO SECTION 4 OF PD 968: "Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. "Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. "An order granting or denying probation shall not be appealable." Thus, a person who was sentenced to destierro cannot apply for probation. (PD 1990)

JURISPRUDENCE PROBATION IS NOT A RIGHT BUT A PRIVILEGE Probation is a mere privilege and its grant rests solely upon the discretion of the court. As aptly noted in U.S. vs. Durken, this discretion is to be exercised primarily for the benefit of organized society and only incidentally for the benefit of the accused. (Tolentino v. Alconcel, G.R. No. 63400, 3/18/83). Even if a convicted person is not included in the list of offenders disqualified from the benefits of a decree, the grant of probation is nevertheless not automatic or ministerial, (Pablo Bernardo v. Balagot, 215 SCRA 526) therefore a petition for probation may be denied by the Court. UNDERLYING PHILOSOPHY OF PROBATION The underlying philosophy of probation is indeed one of liberality towards the accused. It is not served by a harsh and stringent interpretation of the statutory provisions. Probation is a major step taken by our Government towards the deterrence and minimizing of crime and the humanization of criminal justice. In line with the public policy behind probation, the right of appeal should not be irrevocably lost from the moment a convicted accused files an application for probation. Appeal and probation spring from the same policy considerations of justice, humanity, and compassion. (Yusi v Morales, 4/28/83) MAIN CRITERION FOR DETERMINING

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WHO MAY BE GRANTED PROBATION. The main criterion laid down by the Probation law in determining who may be granted probation is based on the penalty imposed and not on the nature of the crime. By the relative lightness of the offense, as measured by the penalty imposed, more than by its nature, as the law so ordains the offender is not such a serious menace to society as to be wrested away therefrom, as the more dangerous type of criminals should be. Hence, in the case at bar, the first reason given by the respondent judge for his denial of the petition for probation that, "probation will depreciate the seriousness of the offense committed" would thus be writing into the law a new ground for disqualifying a first-offender from the benefits of probation. (Santos v. Cruz-Pano, 1/17/83) TIMELINESS OF FILING APPLICATION FOR PROBATION The accused must file a Petition for Probation within the period for appeal. If the decision of conviction has become final and executory, the accused is barred from filing a Petition for Probation (Pablo Francisco v. C.A., 4/6/95).

ORDER DENYING PROBATION NOT APPEALABLE, REMEDY CERTIORARI Although an order denying probation is not appealable, the accused may file a motion for Certiorari from said order (Heirs of Francisco Abueg v. C.A., 219 SCRA 78) EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF RIGHT TO APPEAL AND FINALITY OF JUDGEMENT A judgement of conviction becomes final when the accused files a petition for probation. However, the judgement is not executory until the petition for probation is resolved. The filing of the petition for probation is a waiver by the accused of his right to appeal the judgement of conviction (Heirs of Francisco Abueg v. C.A., supra).

MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF PENALTY FOR EACH CONVICTION IS PROBATIONABLE ." Evidently, the law does not intend to sum up the penalties imposed but to take each penalty, separately and distinctly with the others. Consequently, even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case, as alleged in the information(s)," and in each of the four (4) informations, he was charged

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with having defamed the four (4) private complainants on four (4) different, separate days, he was still eligible for probation, as each prison term imposed on petitioner was probationable. (Francisco v. CA; 4/16/95) WHY FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS IS ALLOWED. Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the assumption that those sentenced to higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrongdoing but because of the gravity and serious consequences of the offense they might further commit. The Probation Law, as amended, disqualifies only those who have been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code, and not necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed to be less perverse. Hence, the basis of the disqualification is principally the gravity of the offense committed and the concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six (6) years are not generally considered callous, hard core criminals, and thus may avail of probation VIOLATION OF RA 6425, A VALID CAUSE FOR DISMISSAL IN SERVICE DESPITE PROBATION Drug-pushing, as a crime, has been variously condemned as "an especially vicious crime," "one of the most pernicious evils that has ever crept into our society." For those who become addicted to it "not only slide into the ranks of the living dead, what is worse, they become a grave menace to the safety of law-abiding members of society," while "peddlers of drugs are actually agents of destruction. The deserve no less than the maximum penalty [of death]." There is no doubt that drug-pushing is a crime which involves moral turpitude and implies "every thing which is done contrary to justice, honesty, modesty or good morals" including "acts of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to the accepted rule of right and duty between man and man." Indeed nothing is more depraved than for anyone to be a merchant of death by selling prohibited drugs, an act which, as this Court said in one case, "often breeds other crimes. It is not what we might call a 'contained' crime whose consequences are limited to that crime alone, like swindling and bigamy. Court and police records show that a significant number of murders, rapes, and similar offenses have been committed by persons under the influence of dangerous drugs, or while they are 'high.' While spreading such drugs, the drug-pusher is also abetting, through his agreed and irresponsibility, the commission of other crimes." The image of the judiciary is tarnished by conduct, which involves moral turpitude. While indeed the purpose of the Probation Law (P.D. No. 968, as amended) is to save valuable human material, it must not be forgotten that

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unlike pardon probation does not obliterate the crime of which the person under probation has been convicted. The reform and rehabilitation of the probationer cannot justify his retention in the government service. He may seek to reenter government service, but only after he has shown that he is fit to serve once again. It cannot be repeated too often that a public office is a public trust, which demands of those in its service the highest degree of morality. (OCA v. Librado; 8/22/96) PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN ACTS DESPITE DISCHARGE FROM PROBATION IN CERTAIN CASES Petitioner Arthur M. Cuevas, Jr.'s discharge from probation without any infraction of the attendant conditions therefor and the various certifications attesting to his righteous, peaceful and civic-oriented character prove that he has taken decisive steps to purge himself of his deficiency in moral character and atone for the unfortunate death of Raul I. Camaligan. The Court is prepared to give him the benefit of the doubt, taking judicial notice of the general tendency of the youth to be rash, temerarious and uncalculating. Let it be stressed to herein petitioner that the lawyer's oath is not a mere formality recited for a few minutes in the glare of flashing cameras and before the presence of select witnesses. Petitioner is exhorted to conduct himself beyond reproach at all times and to live strictly according to his oath and the Code of Professional Responsibility. And, to paraphrase Mr. Justice Padilla's comment in the sister case of Re: Petition of Al Argosino To Take The Lawyer's Oath, Bar Matter No. 712, March 19, 1997, "[t]he Court sincerely hopes that" Mr. Cuevas, Jr., "will continue with the assistance he has been giving to his community. As a lawyer he will now be in a better position to render legal and other services to the more unfortunate members of society". (In Re: Cuevas, Jr.; 1/27/98) EXPIRATION OF PERIOD OF PROBATION TERMINATION, ORDER OF COURT REQUIRED

IS

NOT

The mere expiration of the period for probation does not, ipso facto, terminate the probation. Probation is not co-terminus with its period, there must be an order from the Court of final discharge, terminating the probation. If the accused violates the condition of the probation before the issuance of said order, the probation may be revoked by the Court (Manuel Bala v. Martinez, 181 SCRA 459).

ANTI-FENCING LAW OF 1979 (PD NO. 1612) DEFINITION

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Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing Law) 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 manner deal in any article, item, object or anything of value which he knows or should be known to him, or to have been derived from the proceeds of the crime of robbery or theft. (DizonPamintuan vs. People, GR 111426, 11 July 94). Presidential Decree No. 1612 or commonly known as the AntiFencing Law of 1979 was enacted under the authority of therein President Ferdinand Marcos. The law took effect on March 2, 1979. The Implementing Rules and Regulations of the Anti-Fencing Law were subsequently formulated and it took effect on June 15, 1979. The Anti-Fencing Law was made to curtail and put an end to the rampant robbery of government and private properties. With the existence of "ready buyers", the "business" of robbing and stealing have become profitable. Hence, a law was enacted to also punish those who buy stolen properties. For if there are no buyers then the malefactors could not profit from their wrong doings. WHAT IS FENCING LAW AND HOW IT CAN BE COMMITTED "Fencing" 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. A "Fence" includes any person, firm, association corporation or partnership or other organization who/ which commits the act of fencing. WHO ARE MADE THEN LIABLE FOR THE CRIME OF FENCING The person liable is the one buying, keeping, concealing and selling the stolen items. If the fence is a corporation, partnership, association or firm, the one liable is the president or the manager or the officer who knows or should have know the fact that the offense was committed. The law provide for penalty range for persons convicted of the crime of fencing. Their penalty depends on the value of the goods or items stolen or bought: a. The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed.

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b. The penalty of prision correccional in its medium and maximum periods, if the value of the property robbed or stolen is more than 6,000 pesos but not exceeding 12, 000 pesos; c. The penalty of prision correccional in its minimum and medium periods, if the value of the property involved is more than 200 pesos but not exceeding 6,000 pesos; d. The penalty of arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property involved is over 50 but not exceeding 200 pesos; e. The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not exceeding 50 pesos. f. The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos. The law requires the establishment engaged in the buy and sell of goods to obtain a clearance or permit to sell "used second hand items", to give effect to the purpose of the law in putting an end to buying and selling stolen items. Failure of which makes the owner or manager liable as a fence. The Implementing Rules provides for the guidelines of issuance of clearances or permits to sell used or secondhand items. It provided for the definition of the following terms: 1. "Used secondhand article" shall refer to any goods, article, items, object or anything of value obtained from an unlicensed dealer or supplier, regardless of whether the same has actually or in fact been used. 2. "Unlicensed dealer/supplier" shall refer to any persons, partnership, firm, corporation, association or any other entity or establishment not licensed by the government to engage in the business of dealing in or of supplying the articles defined in the preceding paragraph; 3. "Store", "establishment" or "entity" shall be construed to include any individual dealing in the buying and selling used secondhand articles, as defined in paragraph hereof; 4. "Buy and Sell" refer to the transaction whereby one purchases used secondhand articles for the purpose of resale to third persons; 5. "Station Commander" shall refer to the Station Commander of the Integrated National Police within the territorial limits of the town or city district where the store, establishment or entity dealing in the buying and selling of used secondhand articles is located. PROCEDURE FOR SECURIUNG PERMIT/CLEARANCE

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The Implementing Rules provided for the method of obtaining clearance or permit. No fee will be charged for the issuance of the clearance/permit. Failure to secure clearance/permit shall be punished as a fence, that may result to the cancellation of business license. 1. The Station Commander shall require the owner of a store or the President, manager or responsible officer in having in stock used secondhand articles, to submit an initial affidavit within thirty (30) days from receipt of notice for the purpose thereof and subsequent affidavits once every fifteen (15) days within five (5) days after the period covered, which shall contain: a. complete inventory of such articles including the names and addresses from whom the articles were acquired. b. Full list of articles to be sold or offered for sale including the time and place of sale c. Place where the articles are presently deposited. The Station Commander may, require the submission of an affidavit accompanied by other documents showing proof of legitimacy of acquisition. 2. Those who wish to secure the permit/clearance, shall file an application with the Station Commander concerned, which states: a. name, address and other pertinent circumstances b. article to be sold or offered for sale to the public and the name and address of the unlicensed dealer or supplier from whom such article was acquired. c. Include the receipt or document showing proof of legitimacy of acquisition. 3. The Station Commander shall examine the documents attached to the application and may require the presentation of other additional documents, if necessary, to show satisfactory proof of the legitimacy of acquisition of the article, subject to the following conditions: a. if the Station Commander is not satisfied with the proof of legitimacy of acquisition, he shall cause the publication of the notice, at the expense of the one seeking clearance/permit, in a newspaper of general circulation for two consecutive days, stating: > articles acquired from unlicensed dealer or supplier > the names and addresses of the persons from whom they were acquired > that such articles are to be sold or offered for sale to the public at the address of the store, establishment or other entity seeking the clearance/permit. 4. If there are no newspapers in general circulation, the party seeking the clearance/permit shall, post a notice daily for one week on the bulletin board of the municipal building of the town where the store, firm, establishment or entity is located or, in the case of an individual, where the articles in his possession are to be sold or offered for sale. 5. If after 15 days, upon expiration of the period of publication or of the notice, no claim is made to any of the articles enumerated in the notice, the Station Commander shall issue the clearance or permit sought. 6. If before expiration of the same period for the publication of the notice or its posting, it shall appear that any of the articles in question is stolen property, the Station Commander shall hold the article in restraint as evidence in any appropriate case to be filed. Articles held in restraint shall kept and disposed of as the circumstances of each case permit. In any case it shall be the duty of the Station Commander concerned to advise/notify the Commission 22

on Audit of the case and comply with such procedure as may be proper under applicable existing laws, rules and regulations. 7. The Station Commander shall, within seventy-two (72) hours from receipt of the application, act thereon by either issuing the clearance/permit requested or denying the same. Denial of an application shall be in writing and shall state in brief the reason/s thereof. 8. Any party not satisfied with the decision of the Station Commander may appeal the same within 10 days to the proper INP (now PNP) District Superintendent and further to the INP (now PNP) Director. The decision of the Director can still be appealed top the Director-General, within 10 days, whose decision may be appealed with the Minister (now Secretary) of National Defense, within 15 days, which decision is final.

PRESUMPTION Mere possession of any good, article, item, object or anything fo value which has been the subject of robbery or thievery, shall be prima facie evidence of fencing. ELEMENTS 1. A crime of robbery or theft has been committed; 2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possess, keeps, acquires, conceals, sells, 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 the said crime; 3. The accused knows or should have known that the said article, item, or object or anything of value has been derived from the proceeds of the crime of robbery or theft; and 4. There is, on the part of the accused, intent to gain for himself or for another. (Dizon-Pamintuan vs People, GR 111426, 11 July 94) As regards the first element, the crime of robbery or theft should have been committed before crime of fencing can be committed. The person committing the crime of robbery or theft, may or may not be the same person committing the crime of fencing. As in the case of D.M. Consunji, Inc., vs. Esguerra, quantities of phelonic plywood were stolen and the Court held that qualified theft had been committed. In People vs. Lucero there was first a snatching incident, where the bag of Mrs. Maripaz Bernard Ramolete was snatch in the public market of Carbon, Cebu City, where she lost a Chinese Gold Necklace and pendant worth some P4,000.00 to snatchers Manuel Elardo and Zacarias Pateras. The snatchers sold the items to Manuel Lucero. Consequently, Lucero was charged with violation of the AntiFencing Law. however, in this case, no eyewitness pointed to Lucero as the perpetrator and the evidence of the prosecution was not strong enough to convict him. The second element speaks of the overt act of keepipng, buying, receiving, possessing, acquiring, concealing, selling or disposing or in any manner deals with stolen items. It is thus illustrated in the case of Lim vs. Court of Appeals, where the accused, Juanito Lim stored and kept in his

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bodega and subsequently bought or disposed of the nine (9) pieces of stolen tires with rims owned by Loui Anton Bond. The accused known or should have known that the goods were stolen. As pointed out in the case of People vs. Adriatico, the court in convicting Norma Adriatico, stated that it was impossible for her to know that the jewelry were stolen because of the fact that Crisilita was willing to part with a considerable number of jewelry at measly sum, and this should have apprised Norma of the possibility that they were stolen goods. The approximate total value of the jewelry were held to be at P20,000.00, and Norma having bought it from Crisilita for only P2,700. The court also considered the fact that Norma engage in the business of buying and selling gold and silver, which business is very well exposed to the practice of fencing. This requires more than ordinary case and caution in dealing with customers. As noted by the trial court: ". . . the Court is not inclined to accept the accused's theory of buying in good faith and disclaimer of ever seeing, much more, buying the other articles. Human experience belies her allegations as no businessman or woman at that, would let go of such opportunities for a clean profit at the expense of innocent owners.’’ The Court in convicting Ernesto Dunlao Sr., noted that the stolen articles composed of farrowing crates and G.I. pipes were found displayed on petitioner's shelves inside his compound. (Dunalao, Sr. v. CA, 08/22/96) In the case of People v. Muere (G.R.12902, 10/18/94), the third element was not proven. This case involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading, owned by the spouses Muere. The store is engaged in buying and selling of second hand merchandise located at Pasay Road, Makati. The said stereo was bought from Wynn's Audio, an existing establishment. The court held that there is no proof that the spouses Muere, had knowledge of the fact that the stereo was stolen. The spouses Muere purchased the stereo from a known merchant and the unit is displayed for sale in their store. These actions are not indicative of a conduct of a guilty person. On the same vein, the third element did not exist in the case of D.M. Consunji, Inc. (Consunji v. Esguerra, 07/30/96) where the subject of the court action are the alleged stolen phelonic plywood owned by D.M. Consunji, Inc., later found to be in the premises of MC Industrial Sales and Seato trading Company, owned respectively by Eduardo Ching and the spouses Sy. Respondents presented sales receipts covering their purchase of the items from Paramount Industrial, which is a known hardware store in Caloocan, thus they had no reason to suspect that the said items were products of theft. The last element is that there is intent to gain for himself or for another. However, intent to gain need not be proven in crimes punishable by a special law such as the Anti-Fencing Law. The crimes punishable by special laws are called "acts mala prohibita". The rule on the subject is that in acts mala prohibita, the only inquiry is that, has the law been violated? (in Gatdner v. People, as cited in US v. Go Chico, 14 Phils. 134) When the act is prohibited by law, intent is immaterial. Likewise, dolo or deceit is immaterial in crimes punishable by special statute like the Anti-Fencing Law. It is the act itself which 24

constitutes the offense and not the motive or intent. Intent to gain is a mental state, the existence if which is demonstrated by the overt acts of the person. The mental state is presumed from the commission of an unlawful act. (Dunlao v. CA) again, intent to gain is a mental state, the existence of which is demonstrated by the overt acts of person, as the keeping of stolen items for subsequent selling. A FENCE MAY BE PROSECUTED UNDER THE RPC OR PD 1612 The state may thus choose to prosecute him either under the RPC or PD NO. 1612 although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and PD No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property. (supra) MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE EVIDENCE OF FENCING Since Sec. 5 of PD NO. 1612 expressly provides that “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” it follows that the accused is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption does not offend the presumption of innocence enshrined in the fundamental law. DISTINCTION BETWEEN FENCING AND ROBBERY The law on fencing does not require the accused to have participation in the criminal design to commit or to have been in any wise involved in the commission of the crime of robbery or theft. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. (People v De Guzman, GR 77368). Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon anything. On the other hand, fencing 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 shall be known to him, to have been derived from the proceeds of the crime of robbery or theft. FENCING AS A CRIME INVOLVING MORAL TURPITUDE. In violation of the Anti-Fencing Law, actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of one's rightful property as that which animated the robbery or theft which by their very nature are crimes of moral turpitude. (Dela Torre v. COMELEC 07/05/96) 25

Moral turpitude can be derived from the third element - accused knows or should have known that the items were stolen. Participation of each felon, one being the robber or the thief or the actual perpetrators, and the other as the fence, differs in point in time and degree but both invaded one's peaceful dominion for gain. (Supra) Both crimes negated the principle of each person's duty to his fellowmen not to appropriate things that they do not own or return something acquired by mistake or with malice. This signifies moral turpitude with moral unfitness. In the case of Dela Torre, he was declared disqualified from running the position of Mayor in Cavinti, Laguna in the last May 8, 1995 elections because of the fact of the disqualification under Sec. 40 of the Local Government Code, of persons running for elective position -"Sec. 40 Disqualifications - (a) Those sentenced by final judgement for an offense involving moral turpitude..." Dela Torre was disqualified because of his prior conviction of the crime of fencing wherein he admitted all the elements of the crime of fencing. ESSENCE OF VIOLATION OF PD 1612, SEC. 2 OR ANTI-FENCING PD 1612, Section 2 thereof requires that the offender buys or otherwise acquires and then sells or disposes of any object of value which he knows or should he known to him to have been derived from the proceeds of the crime of robbery or theft. (Caoili v CA; GR 128369, 12/22/97) PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF OFFENDER NOT NECESSARY IN ANTI-FENCING The law does not require proof of purchase of the stolen articles by petitioner, as mere possession thereof is enough to give rise to a presumption of fencing. It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing evidence. (Caoili v. CA; GR 128369, 12/22/97)

BATAS PAMBANSA BLG. 22 BOUNCING CHECKS LAW ACTS PUNISHABLE: a. any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank, for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds, or credit, or would have been 26

dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment. b. Any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety days from date appearing thereon, for which reason, it is dishonored by the drawee bank.

HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22 To establish her guilt, it is indispensable that the checks she issued for which she was subsequently charged, be offered in evidence because the gravamen of the offense charged is the act of knowingly issuing a check with insufficient funds. Clearly, it was error to convict complainant on the basis of her letter alone. Nevertheless, despite this incorrect interpretation of a rule on evidence, we do not find the same as sufficiently constitutive of the charges of gross ignorance of the law and of knowingly rendering an unjust decision. Rather, it is at most an error in judgment, for which, as a general rule, he cannot be held administratively liable. In this regard, we reiterate the prevailing rule in our jurisdiction as established by current jurisprudence. (Gutierrez v Pallatao; 8/8/98)

NOTICE, AN INDISPENSABLE REQUISITE FOR PROSECUTION Section 3 of BP 22 requires that the holder of the check or the drawee bank, must notify the drawer of the check that the same was dishonored, if the same is presented within ninety days from date of issuance, and upon notice the drawer has five days within which to make arrangements for the payment of the check or pay the same in full. DUTY OF THE DRAWEE BANK The drawee bank has the duty to cause to be written, printed or stamped in plain language thereon, or attached thereto the reason for the drawee’s dishonor or refusal to pay the same. If the drawee bank fails to do so, prosecution for violation of BP 22 may not prosper. RULE IN CASE OF DISHONOR DUE TO STOP PAYMENT The drawee bank has not only the duty to indicate that the drawer stopped the payment and the reason for the stop payment. The drawee bank is further obligated to state whether the drawer of the check has sufficient funds in the bank or not. AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A DEFENSE 27

In the case of People vs Nitafan, 215 SCRA, the agreement of the parties in respect to the issuance of the check is inconsequential or will not affect the violation of BP 22, if the check is presented to the bank and the same was dishonored due to insufficiency of funds. CHECKS ISSUED IN PAYMENT OF INSTALLMENT Checks issued in payment for installment covered by promissory note and said checks bounced, the drawer is liable if the checks were drawn against insufficient funds, especially that the drawer, upon signing of the promissory note, closed his account. Said check is still with consideration. (Caram Resources v. Contreras) In this case, the Judge was even held administratively liable. CHECK DRAWN AGAINST A DOLLAR ACCOUNT. RULE: A check drawn against a dollar account in a foreign country is still violative of the provisions of BP 22 so long as the check is issued, delivered or uttered in the Philippines, even if the same is payable outside of the Philippines (De Villa v. CA) GUARANTEE CHECKS, DRAWER, STILL LIABLE The mere act of issuing a worthless check is punishable. Offender cannot claim good faith for it is malum prohibitum. In the case of Magno vs CA, when accused issued a check as warranty deposit for lease of certain equipment, even knowing that he has no funds or insufficient funds in the bank is not liable, if the lessor of the equipment pulled out the loaned equipment. The drawer has no obligation to make good the check because there is no more deposit to guaranty.

ISSUANCE OF GUARANTEE CHECKS WHICH WAS DISHONORED IN VIOLATION AND PURPOSE OF THE LAW The intention of the framers of BP 22 is to make a mere act of issuing a worthless check malum prohibitum. In prosecutions for violation of BP 22, therefore, prejudice or damage is not prerequisite for conviction. The agreement surrounding the issuance of the checks need not be first locked into, since the law has provided that the mere issuance of any kind of check; regardless of the intent of the parties, i.e., whether the check is intended merely to serve as guarantee or deposit, but which checks is subsequently dishonored, makes the person who issued the check liable. (Lazaro vs CA, et al., GR 105461).

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CAN A PERSON BE HELD LIABLE FOR ISSUING A CHECK WITH SUFFICIENT FUNDS FOR VIOLATION OF BP 22? Yes. Paragraph 2 of Section 1 of BP 22 provides: The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon, for which reason, it is dishonored by the drawee bank. RULE ON RENDERING UNJUST JUDGMENT, IGNORANCE, ETC. BY A JUDGE In the case of De la Cruz vs. Concepcion this Court declared: "Mere errors in the appreciation of evidence, unless so gross and patent as to produce an inference of ignorance or bad faith, or of knowing rendition of an unjust decision, are irrelevant and immaterial in an administrative proceeding against him. No one, called upon to try facts or interpret the law in the process of administering justice, can be infallible in his judgment. All that is expected of him is that he follow the rules prescribed to ensure a fair and impartial hearing, assess the different factors that emerge therefrom and bear on the issues presented, and on the basis of the conclusions he finds established, with only his conscience and knowledge of the law to guide him, adjudicate the case accordingly." (Gutierrez v Pallatao; Adm. Matter #RTJ-95-1326, July 8, 1998)

DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF BP 22 In the crime of estafa, deceit and damage are essential elements of the offense and have to be established with satisfactory proof to warrant conviction. For violation of the Bouncing Checks Law, on the other hand, the elements of deceit and damage are neither essential nor required. Rather, the elements of B.P. Blg. 22 are (a) the making, drawing and issuance of any check to apply to account or for value; (b) the maker, drawer or issuer knows at the time of issuance that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and, (c) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without valid reason, ordered the bank to stop payment. (Uy v Court of Appeals, GR 119000, July 28, 1997) JURISDICTION IN 29

BP 22 CASES In respect of the Bouncing checks case, the offense also appears to be continuing in nature. It is true that the offense is committed by the very fact of its performance (Colmenares vs. Villar, No. L-27126, May 29, 1970, 33 SCRA 186); and that the Bouncing Checks Law penalizes not only the fact of dishonor of a check but also the act of making or drawing and issuance of a bouncing check (People vs. Hon. Veridiano, II, No. L-62243, 132 SCRA 523). The case, therefore, could have been filed also in Bulacan. As held in Que vs. People of the Philippines, G.R. Nos. 75217-18, September 11, 1987 "the determinative factor (in determining venue) is the place of the issuance of the check". However, it is likewise true that knowledge on the part of the maker or drawer of the check of the insufficiency of his funds, which is an essential ingredient of the offense is by itself a continuing eventuality, whether the accused be within one territory or another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly, jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga. And, as pointed out in the Manzanilla case, jurisdiction or venue is determined by the allegation in the Information, which are controlling (Arches vs. Bellosillo, 81 Phil. 190, cited in Tuzon vs. Cruz, No. L-27410, August 28, 1975, 66 SCRA 235). The Information filed herein specifically alleges that the crime was committed in San Fernando Pampanga and therefore within the jurisdiction of the Court below. This ruling was reiterated in the case of Lim vs. Rodrigo, 167 SCRA 487, where it was held: Besides, it was held in People v. Hon. Manzanilla, supra, that as "violation of the bad checks act is committed when one 'makes or draws and issues any check [sic] to apply on account or for value, knowing at the time issue that he does not have sufficient funds' or having sufficient funds in or credit with the drawee bank . . . shall fail 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, for which reason it is dishonored by the drawee bank," "knowledge" is an essential ingredient of the offense charge. As defined by the statute, knowledge, is, by itself, a continuing eventuality, whether the accused be within one territory or another. This being the case, the Regional Trial Court of Baguio City has jurisdiction to try Criminal Case No. 2089-R (688). Moreover, we ruled in the same case of People v. Hon. Manzanilla, reiterated in People vs. Grospe, supra, that jurisdiction or venue is determined by the allegations in the information. The allegation in the information under consideration that the offense was committed in Baguio City is therefore controlling and sufficient to vest jurisdiction upon the Regional Trial Court of Baguio City. In the case at bench it appears that the three (3) checks were deposited in Lucena City. As to the second error wherein the petitioner asserted that the checks were issued "as a guarantee only for the feeds delivered to him" and that there is no estafa if a check is issued in payment of a pre-existing obligation, the Court of Appeals pointed out that the petitioner obviously failed to distinguish a violation of B.P. Blg. 22 from estafa under Article 315 (2) [d] of the Revised Penal Code. It further stressed that B.P. Blg. 22 applies even in cases where dishonored checks 30

were issued as a guarantee or for deposit only, for it makes no distinction as to whether the checks within its contemplation are issued in payment of an obligation or merely to guarantee the said obligation and the history of its enactment evinces the definite legislative intent to make the prohibition allembracing. (Ibasco vs CA, 9/5/96)

ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS ESSENTIAL IN BP 22 Knowledge of insufficiency of funds or credit in the drawee bank for the payment of a check upon its presentment is an essential element of the offense. There is a prima facie presumption of the existence of this element from the fact of drawing, issuing or making a check, the payment of which was subsequently refused for insufficiency of funds. It is important to stress, however, that this is not a conclusive presumption that forecloses or precludes the presentation of evidence to the contrary. (Lim Lao v CA; 6/20/97) WHEN LACK OF KNOWLEDGE AND LACK OF POWER TO FUND THE CHECKS IN CASES OF BP 22 A DEFENSE After a thorough review of the case at bar, the Court finds that Petitioner Lina Lim Lao did not have actual knowledge of the insufficiency of funds in the corporate accounts at the time she affixed her signature to the checks involved in this case, at the time the same were issued, and even at the time the checks were subsequently dishonored by the drawee bank. The scope of petitioner's duties and responsibilities did not encompass the funding of the corporation's checks; her duties were limited to the marketing department of the Binondo branch. Under the organizational structure of Premiere Financing Corporation, funding of checks was the sole responsibility of the Treasury Department. (Lim Lao v CA; 6/20/97

LACK OF ADEQUATE NOTICE OF DISHONOR, A DEFENSE There can be no prima facie evidence of knowledge of insufficiency of funds in the instant case because no notice of dishonor was actually sent to or received by the petitioner. The notice of dishonor may be sent by the offended party or the drawee bank. The trial court itself found absent a personal notice of dishonor to Petitioner Lina Lim Lao by the drawee bank based on the unrebutted testimony of Ocampo "(t)hat the checks bounced when presented with the drawee bank but she did not inform anymore the Binondo branch and Lina Lim Lao as there was no need to inform them as the corporation was in distress." The Court of Appeals affirmed this factual finding. Pursuant to prevailing jurisprudence, this finding is binding on this Court. (Lim Lao v CA; 6/20/97)

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ANTI-GRAFT & CORRUPT PRACTICES ACT (RA NO 3019) ANTI-GRAFT AND CORRUPT PRACTICES ACT Corrupt practices of public officers. (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. (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. (c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. (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. (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (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.

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(h) Director or indirectly 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. (i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. ( j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. UNEXPLAINED WEALTH, MEANING Prima facie evidence of and dismissal due to unexplained wealth. If in accordance with the provisions of RA 1379, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal. Note: Unsolicited gifts or presents of small or insignificant value shall be offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage shall be exempted from the provision of this act. MEANING OF “CAUSING UNDUE INJURY” The act of giving any private party any unwarranted benefit, advantage or preference is not an indispensable element of causing any undue injury to any part, although there may be instances where both elements concur. (Santiago vs Garchitorena, et al., 2 Dec. 93). In Mejoroda v Sandiganbayan, the Supreme Court has ruled that the offender in causing undue injury does not refer only to those who are in charge of giving permits, licenses or concessions but all acts of public officers or employees which have caused undue injury to others. ELEMENTS OF NEGLECT OF DUTY UNDER SEC. 3 OF RA 3019 33

a. the offender is a public officer; b. the said officer has neglected or has refused to act without sufficient justification after due demand or request has been made upon him; c. reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; d. such failure to so act is for the purpose of obtaining directly or indirectly from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party or discriminating against another. Coronado v Sandiganbayan.

WHERE PUBLIC OFFICER ACTED WITH MANIFEST PARTIALITY, EVIDENT BAD FAITH, OR INEXCUSABLE NEGLIGENCE Sec. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx

xxx

xxx

(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.

VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES PROOF OF THE FOLLOWING FACTS, VIZ: a. the accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them; b. the public officer committed the prohibited act during the performance of his official duty or in relation to his public position; c. the public officer acted with manifest partiality evident bad faith or gross, inexcusable negligence; and d. his action caused undue injury to the government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties.

CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e) OF RA 3019. MEANING.

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Section 3 enumerates in eleven subsections the corrupt practices of any public officer declared unlawful. Its reference to any public officer is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last inclusion of officers and employees of offices or government corporations which, under the ordinary concept of “public officer” may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting license or permits or other concessions. (Mejorada v Sandiganbayan, 151 SCRA 399).

SUSPENSION UNDER R.A. 3019 MANDATORY BUT COURTS ARE ALLOWED TO DETERMINE WHETHER INFORMATION IS VALID OR NOT It is well settled that Section 13 of RA 3019 makes it mandatory for the Sandiganbayan (or the Court) to suspend any public officer against whom a valid information charging violation of this law, Book II, Title 7 of the RPC, or any offense involving fraud upon government or public funds or property is filed in court. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. All that is required is for the court to make a finding that the accused stands charged under a valid information for any of the above-described crimes for the purpose of granting or denying the sought for suspension. (Bolastig vs. Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235 SCRA 103).In the same case, the Court held that "as applied to criminal prosecutions under RA 3019, preventive suspension will last for less than ninety (90) days only if the case is decided within that period; otherwise, it will continue for ninety (90) days." (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

PUBLIC OFFICER MAY BE SUSPENDED FROM HIS PRESENT POSITION EVEN IF THE CRIME WHICH HE IS BEING CHARGED WAS COMMITTED DURING HIS PREVIOUS TERM Judge Monzon's contention denying complainant's Motion for Suspension because "offenses committed during the previous term (is) not a cause for removal during the present term" is untenable. In the case of Rodolfo E. Aguinaldo vs. Hon. Luis Santos and Melvin Vargas, 212 SCRA 768, the Court held that "the rule is that a public official cannot be removed for administrative misconduct committed during a prior term since his reelection to office operates as a condonation of the officer's previous misconduct committed during a prior term, to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases . . ." Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R. No. L-23220, 18 December 1967, 21 SCRA 1292, that "The ruling, therefore, that 'when the people have elected a man to office it must be assumed that they did this with knowledge of his life and character and 35

that they disregarded or forgave his faults or misconduct if he had been guilty of any' refers only to an action for removal from office and does not apply to a criminal case" Clearly, even if the alleged unlawful appointment was committed during Maghirang's first term as barangay chairman and the Motion for his suspension was only filed in 1995 during his second term, his re-election is not a bar to his suspension as the suspension sought for is in connection with a criminal case. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

RE-ELECTION IN PUBLICOFFICE EXTINGUISHING ONLY HIS ADMINISTRATIVE LIABILITY BUT NOT HIS CRIMINAL LIABILITY As early as 18 December 1967 in Ingco v. Sanchez, 17 this Court explicitly ruled that the re-election of a public official extinguishes only the administrative, but not the criminal, liability incurred by him during his previous term of office, thus: The ruling, therefore, that — "when the people have elected a man to his office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any" — refers only to an action for removal from office and does not apply to criminal case, because a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole. This must be the reason why Article 89 of the Revised Penal Code, which enumerates the grounds for extinction of criminal liability, does not include reelection to office as one of them, at least insofar as a public officer is concerned. Also, under the Constitution, it is only the President who may grant the pardon of a criminal offense. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

PRE-CONDITION OF SUSPENSION (PREVENTIVE) UNDER SEC. 13, RA 3019 It is mandatory for the court to place under preventive suspension a public officer accused before it. Imposition of suspension, however, is not automatic or self-operative. A pre-condition thereof is the existence of a valid information, determined at a pre-suspension hearing. Such a hearing is in accord with the spirit of the law, considering the serious and far-reaching consequences of a suspension of a public official even before his conviction, and the demands of public interest for a speedy determination of the issues involved in the case. The purpose of the pre-suspension hearing is basically to determine the validity of the information and thereby furnish the court with a basis to either suspend the accused and proceed with the trial on the merits of the case, or refuse suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity. The accused should be given adequate opportunity to challenge the validity 36

or regularity of the criminal proceedings against him; e.g. that he has not been afforded the right to due preliminary investigation; that the acts imputed to him do not constitute a specific crime (under R.A. 3019 or the Revised Penal Code) warranting his mandatory suspension from office under Section 13 of the Act; or that the information is subject to quashal on any of the grounds set out in Rule 117 of the Rules of Court. But once a proper determination of the validity of the information has been made, it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension. The court has no discretion, for instance, to hold in abeyance the suspension of the accused official on the pretext that the order denying the latter's motion to quash is pending review before the appellate courts. (Segovia v. Sandiganbayan; GR 124067, Mar. 27, 1998)

GUIDELINES TO BE FOLLOWED IN PREVENTIVE SUSPENSION CASES "In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950, July 30, 1971, 40 SCRA 187), we have set out the guidelines to be followed by the lower courts in the exercise of the power of suspension under Section 13 of the law, to wit: (c) By way of broad guidelines for the lower courts in the exercise of the power of suspension from office of public officers charged under a valid information under the provisions of Republic Act No. 3019 or under the provisions of the Revised Penal Code on bribery, pursuant to section 13 of said Act, it may be briefly stated that upon the filing of such information, the trial court should issue an order with proper notice requiring the accused officer to show cause at a specific date of hearing why he should not be ordered suspended from office pursuant to the cited mandatory provisions of the Act. Where either the prosecution seasonably files a motion for an order of suspension or the accused in turn files a motion to quash the information or challenges the validity thereof, such show-cause order of the trial court would no longer be necessary. What is indispensable is that the trial court duly hear the parties at a hearing held for determining the validity of the information, and thereafter hand down its ruling, issuing the corresponding order of suspension should it uphold the validity of the information or withhold such suspension in the contrary case. (d) No specific rules need be laid down for such presuspension hearing. Suffice it to state that the accused should be given a fair and adequate opportunity to challenge the validity of the criminal proceedings against him, e.g., that he has not been afforded the right of due preliminary investigation, the act for which he stands charged do not constitute a violation of the provisions of Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code which would warrant his mandatory suspension from office under Section 13 of the Act, or he may present a motion to quash the information on any of the grounds provided in Rule 117 of the Rules of Court. The mandatory suspension decreed by the act upon determination of the pendency in court or a criminal prosecution for violation of the Anti-Graft Act or for bribery under a valid information requires at the same time that the hearing be expeditious, and not unduly protracted such as to thwart the prompt 37

suspension envisioned by the Act. Hence, if the trial court, say, finds the ground alleged in the quashal motion not to be indubitable, then it shall be called upon to issue the suspension order upon its upholding the validity of the information and setting the same for trial on the merits.' (Segovia v. Sandiganbayan)

WHEN MAY A PUBLIC OFFICER BE LIABLE FOR CAUSING UNDUE INJURY UNDER SEC. 3(e) of RA 3019 xxx

xxx

xxx

(c) 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." To hold a person liable under this section, the concurrence of the following elements must be established beyond reasonable doubt by the prosecution: "(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." (Llorente v. Sandiganbayan; GR 122166, Mar. 11, 1998)

MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA 3019 "Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. (Spiegel v Beacon Participations, 8 NE 2nd Series 895, 1007). It contemplates a state of mind affirmatively operating with furtive design or some motive of self interest or ill will for ulterior purposes (Air France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage." In Jacinto, evident bad faith was not appreciated because the actions taken by the accused were not entirely without rhyme or reason; he refused to release the complainant's salary because the latter failed to submit her daily time record; he refused to approve her sick-leave application because he found out that she did not suffer any illness; and he removed her name from 38

the plantilla because she was moonlighting during office hours. Such actions were measures taken by a superior against an erring employee who studiously ignored, if not defied, his authority. (Llorente v. Sandiganbayan)

WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e) BUT UNDER SEC. (f) OF RA 3019 It would appear that petitioner's failure or refusal to act on the complainant's vouchers, or the delay in his acting on them more properly falls under Sec. 3[f]: "(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party." Here, the neglect or refusal to act within a reasonable time is the criminal act, not the causing of undue injury. Thus, its elements are: "1) The offender is a public officer; 2) Said officer has neglected or has refused to act without sufficient justification after due demand or request has been made on him; 3) Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; and 4) Such failure to so act is 'for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party, or discriminating against another." However, petitioner is not charged with a violation of Sec. 3[f]. Hence, further disquisition is not proper. Neither may this Court convict petitioner under Sec. 3[f] without violating his constitutional right to due process. (Llorente v. Sandiganbayan) SUSPPENSION (PREVENTIVE) OF LOCAL OFFICIALS SHALL ONLY BE FOR 60 DAYS On the other hand, we find merit in petitioner's second assigned error. The Sandiganbayan erred in imposing a 90 day suspension upon petitioner for the single case filed against him. Under Section 63 (b) of the Local Government Code, "any single preventive suspension of local elective officials shall not extend beyond sixty (60) days." (Rios v. Sandiganbayan; GR 129913, Set. 26, 1997) APPROVAL OF LEAVE OF ABSENCE NOT A BAR TO SUSPENSION

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Since the petitioner is an incumbent public official charged in a valid information with an offense punishable under the Constitution and the laws (RA 3019 and PD 807), the law's command that he "shall be suspended from office" pendente lite must be obeyed. His approved leave of absence is not a bar to his preventive suspension for as indicated by the Solicitor General, an approved leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the incumbent. (Doromal v. Sandiganbayan; GR 85468, Sepr. 7, 1989)

UNDUE DELAY IN PRELIMINARY INVESTIGATIONS VIOLATIVE OF DUE PROCESS AND A GROUND TO DISMISS After a careful review of the facts and circumstances of this case, we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues raised by petitioner. (Tatad v. Sandiganbayan)

THE DANGEROUS DRUGS ACT OF 1972 (RA 6425) IF MARIJUANA IS INVOLVED, THE FOLLOWING PENALTIES IN RELATION TO THEIR WEIGHT SHOULD BE OBSERVED In People v. De Lara (236 SCRA 291, 299), it was held that "(I)f the marijuana involved is from 500 to 749 grams, the penalty to be imposed is reclusion temporal. If the marijuana involved is from 250 to 499 grams, the penalty to be imposed is prision mayor and if the weight of the marijuana involved is below 250 grams, the penalty to be imposed is prision correccional." In People v. Simon (234 SCRA 555), R A. No. 6425, as amended, was further amended by R A No 7659 which took effect on December 31, 1993 (On page 569). And, it has long been settled that by force of Article 10 of said Code the beneficent provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes punished by special laws" like R A No 6425, as amended by R A No. 7659. (People v. Maquilan; GR 126170, Aug. 27, ’98)

POSESSION IS ABSORBED BY SELLING, EXCEPTION

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The general rule is that possession of marijuana is absorbed in the sale thereof. The exception thereto is where, aside from his sale and delivery of the marijuana to the buyer, pursuant to the sales transaction , the seller is further apprehended in possession of another quantity of the prohibited drugs, not covered by or included in the sale and probably intended for some future dealings or use by the seller. (People v. Angeles; GR 95161, 2/2/93)

EXCEPTION TO NECESSITY OF A SEARCH WARRANT There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person arrested. An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was in fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping, which may be used as evidence in the trial of the case. (People v. Musa; GR 96177, 1/27/93)

LIKE ALIBI, FRAME UP IS EASY TO FABRICATE, BUT DIFFICULT TO PROVE Frame-up, like alibi, is a defense that has been viewed by courts with disfavor for it can just as easily be connected and is a common and standard line of defense in most prosecution arising from violations of the Dangerous Drugs Act. In order for that defense to prosper, the evidence adduced must be clear and convincing. (People v. Girang; GR 27949, 2/1/95) BUY-BUST OPERATION Is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the commission of the offense. Entrapment has received judicial sanction as long as it is carried out with due regard to constitutional and legal safeguards. (People v. Basilgo; GR 107327, 8/5/94) POSEUR-BUYER, GENERALLY NEED NOT TESTIFY The testimony of the poseur-buyer or of the confidential informant is no longer material considering that accused-appellant’s drug pushing was positively attested to. Moreover, informants are generally not presumed in court because of the need to hide their identity and preserve their invaluable service to the police. (People v. Girang; GR 97949, 2/1/95)

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EFFECT OF LIMITATION UNDER SECTION 19, ART. VII OF THE CONSTITUTION ON GRANT OF PARDON The "conviction by final judgment" limitation under Section 19, Article VII of the present Constitution prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from his conviction by the trial court. Any application therefor, if one is made, should not be acted upon or the process toward its grant should not be begun unless the appeal is withdrawn. Accordingly, the agencies or instrumentalities of the Government concerned must require proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal Such proof may be in the form of a certification issued by the trial court or the appellate court, as the case may be The acceptance of the pardon shall not operate as an abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon, commutation of sentence, or parole before the withdrawal of an appeal shall render those responsible therefor administratively liable Accordingly, those in custody of the accused must not solely rely on the pardon as a basis for the release of the accused from confinement. (People v. Maquilan)

RULE AS TO WHO SHOULD BE CRIMINALLY CHARGED The settled rule is that the determination of who should be criminally charged in court is essentially an executive function, not a judicial one. As the officer authorized to direct and control the prosecution of all criminal actions, the prosecutor is tasked to ascertain whether there is sufficient ground to engender a well-founded belief that an offense has been committed and that the accused is probably guilty thereof. (People v. Esparas; GR 120034, July 10, 1998)

WHEN THERE IS A WAIVER OF WARRANTLESS ARREST The appellants are now precluded from assailing the warrantless search and seizure when they voluntarily submitted to it as shown by their actuation during the search and seizure. The appellants never protested when SPO3 Jesus Faller, after identifying himself as a police officer, opened the tin can loaded in the appellants' vehicle and found eight (8) bundles. And when Faller opened one of the bundles, it smelled of marijuana. The NBI later confirmed the eight (8) bundles to be positive for marijuana. Again, the appellants did not raise any protest when they, together with their cargo of drugs and their vehicle, were brought to the police station for investigation and subsequent prosecution. We have ruled in a long line of cases that: "When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631). The right to be secure from unreasonable search may, like every 42

right, be waived and such waiver may be made either expressly or impliedly." The appellants effectively waived their constitutional right against the search and seizure in question by their voluntary submission to the jurisdiction of the trial court, when they entered a plea of not guilty upon arraignment and by participating in the trial. (People v. Correa; GR 119246, Jan. 30, ’98) WHEN USE OF MOTOR VEHICLE IN DRUG CASES OR ANY OTHER CASE IS NOT AGGRAVATING Simply stated, the motor vehicle which was used to transport prohibited drugs was not purposely sought to facilitate the commission of the crime since such act of transporting constitutes the crime itself, punishable under Section 4, Article II of Republic Act No. 6425, as amended. That a motor vehicle was used in committing the crime is merely incidental to the act of transporting prohibited drugs. The use of a motor vehicle is inherent in the crime of transporting as it must of necessity accompany the commission thereof; hence, such use is not an aggravating circumstance. (People v. Correa)

CASES WHEN WARRANTLESS SEARCH IS ALLOWED 1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; 2.

Seizure of evidence in "plain view," the elements of which are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent, and (d) "plain view" justified mere seizure of evidence without further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. 5. 6. 7.

Consented warrantless search; Customs search; Stop and Frisk; and Exigent and Emergency Circumstances. (People v. Menguin; GR 120915, Apr. 13, ’98)

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CASES WHEN SEARCH WITHOUT A WARRANT WAS VALID In People v. Tangliben, acting on information supplied by informers, police officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting suspiciously. They confronted him and requested him to open his bag but he refused. He acceded later on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest. In instant case, the apprehending officers already had prior knowledge from their informant regarding Aruta's alleged activities. In Tangliben policemen were confronted with an on-the-spot tip. Moreover, the policemen knew that the Victory Liner compound is being used by drug traffickers as their "business address". More significantly, Tangliben was acting suspiciously. His actuations and surrounding circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. In instant case, there is no single indication that Aruta was acting suspiciously. In People v. Malmstedt, the Narcom agents received reports that vehicles coming from Sagada were transporting marijuana. They likewise received information that a Caucasian coming from Sagada had prohibited drugs on his person. There was no reasonable time to obtain a search warrant, especially since the identity of the suspect could not be readily ascertained. His actuations also aroused the suspicion of the officers conducting the operation. The Court held that in light of such circumstances, to deprive the agents of the ability and facility to act promptly, including a search without a warrant, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society. Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police officers had reasonable time within which to secure a search warrant. Second, Aruta's identity was priorly ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched aboard a moving vehicle, a legally accepted exception to the warrant requirement. Aruta, on the other hand, was searched while about to cross a street. In People v. Bagista, the NARCOM officers had probable cause to stop and search all vehicles coming from the north to Acop, Tublay, Benguet in view of the confidential information they received from their regular informant that a woman having the same appearance as that of accused-appellant would be bringing marijuana from up north. They likewise had probable cause to search accused-appellant's belongings since she fitted the description given by the NARCOM informant. Since there was a valid warrantless search by the NARCOM agents, any evidence obtained in the course of said search is admissible against accusedappellant. Again, this case differs from Aruta as this involves a search of a moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to the requirements of a search warrant.

44

In Manalili v. Court of Appeals and People, the policemen conducted a surveillance in an area of the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the place, they chanced upon a man in front of the cemetery who appeared to be "high" on drugs. He was observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the policemen. When approached and asked what he was holding in his hands, he tried to resist. When he showed his wallet, it contained marijuana. The Court held that the policemen had sufficient reason to accost accusedappellant to determine if he was actually "high" on drugs due to his suspicious actuations, coupled with the fact that based on information, this area was a haven for drug addicts. This case is similar to People v. Aminnudin where the police received information two days before the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. His name was known, the vehicle was identified and the date of arrival was certain. From the information they had received, the police could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin. When the case was brought before this Court, the arrest was held to be illegal; hence any item seized from Aminnudin could not be used against him. Another recent case is People v. Encinada where the police likewise received confidential information the day before at 4:00 in the afternoon from their informant that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following day. This intelligence information regarding the culprit's identity, the particular crime he allegedly committed and his exact whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. This Court held that in accordance with Administrative Circular No. 13 and Circular No. 19, series of 1987, the lawmen could have applied for a warrant even after court hours. The failure or neglect to secure one cannot serve as an excuse for violating Encinada's constitutional right. People v. Solayao, applied the stop and frisk principle which has been adopted in Posadas v. Court of Appeals. In said case, Solayao attempted to flee when he and his companions were accosted by government agents. In the instant case, there was no observable manifestation that could have aroused the suspicion of the NARCOM agents as to cause them to "stop and frisk" accused-appellant. To reiterate, accused-appellant was merely crossing the street when apprehended. Unlike in the abovementioned cases, accused-appellant never attempted to flee from the NARCOM agents when the latter identified themselves as such. Clearly, this is another indication of the paucity of probable cause that would sufficiently provoke a suspicion that accused-appellant was committing a crime. This Court cannot agree with the Solicitor General's contention for the Malasugui case is inapplicable to the instant case. In said case, there was probable cause for the warrantless arrest thereby making the warrantless search effected immediately thereafter equally lawful. On the contrary, the most essential element of probable cause, as expounded above in detail, is wanting in the instant case making the warrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantless arrest was likewise unjustified and illegal. Thus, all the articles seized from the 45

accused-appellant could not be used as evidence against her. (People Menguin)

v.

WHEN SEARCH IS NOT VALID Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed a crime. Accused-appellant was merely crossing the street and was not acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and conclude that she was committing a crime. It was only when the informant pointed to accused-appellant and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger of the informant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for them to suspect that accused-appellant was committing a crime, except for the pointing finger of the informant. This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional guarantee against unreasonable search and seizure. Neither was there any semblance of any compliance with the rigid requirements of probable cause and warrantless arrests. Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of accused-appellant's bag, there being no probable cause and the accused-appellant not having been lawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the subsequent search was similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles seized could not be used as evidence against accused-appellant for these are "fruits of a poisoned tree" and, therefore, must be rejected, pursuant to Article III, Sec. 3(2) of the Constitution. (People v. Menguin)

WHEN VOLUNTARY SUBMISSION TO SEARCH IS INAPPLICABLE Aside from the inapplicability of the abovecited case, the act of herein accused-appellant in handing over her bag to the NARCOM agents could not be construed as voluntary submission or an implied acquiescence to the unreasonable search. The instant case is similar to People v. Encinada. (People v. Menguin)

WHEN SEARCH IS NOT ALLOWED AFTER AN ARREST IS MADE In the case of People v. Lua, this Court held: "As regards the brick of marijuana found inside the appellant's house, the trial court correctly ignored it apparently in view of its inadmissibility. While initially the arrest as well as the body search was lawful, the warrantless search made inside the appellant's house became unlawful since the police operatives were not armed with a search warrant. 46

Such search cannot fall under "search made incidental to a lawful arrest," the same being limited to body search and to that point within reach or control of the person arrested, or that which may furnish him with the means of committing violence or of escaping. In the case at bar, appellant was admittedly outside his house when he was arrested. Hence, it can hardly be said that the inner portion of his house was within his reach or control. (Espano v. C.A.; GR 120431, April 1, ’98)

MEANING OF “TO TRANSPORT” IN DRUG CASES In People vs. Lo Ho Wing, the Court defined the term "transport", as used under the Dangerous Drugs Act to mean "to carry or convey from one place to another" , the operative words being "to carry or to convey". The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed. It is immaterial whether or not the place of destination was reached. (People v. Latura)

QUALIFYING CIRCUMSTANCE IN DANGEROUS DRUGS CASES Under Section 20, of R.A. 7659, the penalty for unlawfully bringing 200 grams or more of shabu into the country is reclusion perpetua to death and the imposable fine may range from five hundred thousand pesos to ten million pesos. The crime is aggravated when committed by any person who belongs to an organized or syndicated crime group. ( People v. Esparas; GR 120034, July 10, 1998) WHEN POLICE OFFICERS INTENTIONALLY PEEPED THRU A WINDOW THEN WENT INSIDE AND ARRESTED THOSE INSIDE WHO ARE PACKING MARIJUANA. THE SAME IS ILLEGAL The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing. On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained during the illegal search cannot be used against accusedappellants; hence, their acquittal must follow in faithful obeisance to the fundamental law. (PP -vs- ZENAIDA BOLASA Y NAKOBOAN, ET AL., G.R. No. 125754, Dec. 22, 1999)

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DEATH PENALTY LAW (RA 7659) PROSTITUTES CAN BE A VICTIM OF RAPE As to the suggestion that ANALIZA was a prostitute, that alone, even if it be conceded, cannot absolve him of his liability for rape. First, prostitutes can be victims of rape. (People v. Alfeche) REASON WHY DWELLING IS AN AGGRAVATING CIRCUMSTANCE Dwelling is considered an aggravating circumstance because primarily of the sanctity of privacy the law accords to human abode. The dwelling need not be owned by the victim. Thus, in People v. Basa, dwelling was appreciated, although the victims were killed while sleeping as guests in the house of another. As aptly stated in People v. Balansit: "[O]ne does not lose his right of privacy where he is offended in the house of another because as [an] invited guest [or a housemaid as in the instant case], he, the stranger, is sheltered by the same roof and protected by the same intimacy of life it affords. It may not be his house, but it is, even for a brief moment, "home" to him. He is entitled to respect even for that short moment." (People v. Alfeche)

WHEN RELATIONSHIP IS NOT AN ALTERNATIVE CIRCUMSTANCE UNDER ART. 15 OF THE RPC Clearly then, the father-daughter relationship in rape cases, or between accused and Relanne, in this case, has been treated by Congress in the nature of a special circumstance which makes the imposition of the death penalty mandatory. Hence, relationship as an alternative circumstance under Article 15 of the Revised Penal Code, appreciated as an aggravating circumstance, should no longer be applied in view of the amendments introduced by R.A. No. 7659. It may be pointed, however, that without the foregoing amendment, relationship would still be an aggravating circumstance in the crimes of rape (Article 335) and acts of lasciviousness (Article 336). 57 If relationship in the instant case were to be appreciated under Article 15 of the Revised Penal Code, the penalty imposable on accused then would not be death, but merely reclusion perpetua for, assuming that Relanne's testimony in court would have confirmed what she narrated in her sworn statement (Exhibit "C"), no circumstance then attended the commission of the rape which could bring the crime under any provision of Article 335 which imposes a penalty higher than inclusion perpetua or of reclusion perpetua to death. (People v. Manyuhod, Jr.)

WHEN OFFENDER IS STEP GRANDPARENT, HE IS NOT CONSIDERED AN ASCENDANT

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UNDER RA 8353 AND RA 7659 The trial court has thus held incorrectly in considering appellant, who is legally married to Roxan's natural grandmother, as among those named in the enumeration. Appellant is merely a step-grandparent who obviously is neither an "ascendant" nor a "step-parent" of the victim. In the recent case of People vs. Atop, 24 the Court rejected the application of the mandatory death penalty to the rape of a 12-year old victim by the commonlaw husband of the girl's grandmother. The Court said: "It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused. Court's must not bring cases within the provision of a law which are not clearly embraced by it. No act can be pronounced criminal which is not clearly made so by statute; so, too, no person who is not clearly within the terms of a statute can be brought within them. Any reasonable doubt must be resolved in favor of the accused." (People v. Deleverio)

RECLUSION PERPETUA IS LIGHTER THAN LIFE IMPRISONMENT AND IF ONE IS SENTENCED TO LIFE IMPRISONMENT AND LATER IMPOSED RECLUSION PERPETUA TO SAME OFFENSE, THE PENALTY THAT SHOULD BE IMPOSED IS RECLUSION PERPETUA Since reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal statutes with a favorable effect upon the accused have, as to him, a retroactive effect, the penalty imposable upon the accused should be reclusion perpetua and not life imprisonment. (People v. Latura)

JUSTIFICATION OF IMPOSITION OF THE DEATH PENALTY Although its origins seem lost in obscurity, the imposition of death as punishment for violation of law or custom, religious or secular, is an ancient practice. We do know that our forefathers killed to avenge themselves and their kin and that initially, the criminal law was used to compensate for a wrong done to a private party or his family, not to punish in the name of the state. The dawning of civilization brought with it both the increasing sensitization throughout the later generations against past barbarity and the institutionalization of state power under the rule of law. Today every man or woman is both an individual person with inherent human rights recognized and protected by the state and a citizen with the duty to serve the common weal and defend and preserve society. One of the indispensable powers of the state is the power to secure society against threatened and actual evil. Pursuant to this, the legislative arm of government enacts criminal laws that define and punish illegal acts 49

that may be committed by its own subjects, the executive agencies enforce these laws, and the judiciary tries and sentences the criminals in accordance with these laws. Although penologists, throughout history, have not stopped debating on the causes of criminal behavior and the purposes of criminal punishment, our criminal laws have been perceived as relatively stable and functional since the enforcement of the Revised Penal Code on January 1, 1932, this notwithstanding occasional opposition to the death penalty provisions therein. The Revised Penal Code, as it was originally promulgated, provided for the death penalty in specified crimes under specific circumstances. As early as 1886, though, capital punishment had entered our legal system through the old Penal Code, which was a modified version of the Spanish Penal Code of 1870. (People v. Echegaray)

WHY DEATH PENALTY IS NOT A CRUEL AND UNUSUAL PUNISHMENT "The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U.S., 436, the United States Supreme Court said that 'punishments are cruel when they involve torture or a lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.'" “as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions," and this we have reiterated in the 1995 case of People v. Veneracion. (People v. Echegaray)

DEATH PENALTY WAS NOT ABOLISHED BUT MERELY SUSPENDED A reading of Section 19 (1) of Article III will readily show that there is really nothing therein which expressly declares the abolition of the death penalty. The provision merely says that the death penalty shall not be imposed unless for compelling reasons involving heinous crimes the Congress hereafter provides for it and, if already imposed, shall be reduced to reclusion perpetua. The language, while rather awkward, is still plain enough". (People v. Echegaray)

DEFINITION OF HEINOUS CRIMES ". . . the crimes punishable by death under this Act are heinous for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society." (People v. Echegaray)

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WHAT ARE THE CRIMES PUNISHABLE BY RECLUSION PERPETUA TO DEATH UNDER RA 7659 Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to death: (1) Treason (Sec. 2); (2) Qualified piracy (Sec. 3); (3) Parricide (Sec. 5); (4) Murder (Sec. 6); (5) Infanticide (Sec. 7); (6) Kidnapping and serious illegal detention if attended by any of the following four circumstances: (a) the victim was detained for more than three days; (b) it was committed simulating public authority; (c) serious physical injuries were inflicted on the victim or threats to kill him were made; and (d) if the victim is a minor, except when the accused is any of the parents, female or a public officer (Sec. 8); (7) Robbery with homicide, rape or intentional mutilation (Sec. 9); (8) Destructive arson if what is burned is (a) one or more buildings or edifice; (b) a building where people usually gather; (c) a train, ship or airplane for public use; (d) a building or factory in the service of public utilities; (e) a building for the purpose of concealing or destroying evidence Or a crime; (f) an arsenal, fireworks factory, or government museum; and (g) a storehouse or factory of explosive materials located in an inhabited place; or regardless of what is burned, if the arson is perpetrated by two or more persons (Sec. 10); (9) Rape attended by any of the following circumstances: (a) the rape is committed with a deadly weapon; (b) the rape is committed by two or more persons; and (c) the rape is attempted or frustrated and committed with homicide (Sec. 11); (10) Plunder involving at least P50 million (Sec. 12); (11) Importation of prohibited drugs (Sec. 13); (12) Sale, administration, delivery, distribution, and transportation of prohibited drugs (id.); (13) Maintenance of den, dive or resort for users of prohibited drugs (id.); (14) Manufacture of prohibited drugs (id.); (15) Possession or use of prohibited drugs in certain specified amounts (id.); (16) Cultivation of plants which are sources of prohibited drugs (id.) (17) Importation of regulated drugs (Sec. 14); (18) Manufacture of regulated drugs (id.); (19) Sale, administration, dispensation, delivery, transportation, and distribution of regulated drugs (id.); (20) Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15); (21) Possession or use of regulated drugs in specified amounts (Sec. 16); (22) Misappropriation, misapplication or failure to account dangerous drugs confiscated by the arresting officer (Sec. 17); (23) Planting evidence of dangerous drugs in person or immediate vicinity of another to implicate the latter (Sec. 19); and (24) Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or raped (Sec. 20). (People v. Echegaray)

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WHAT ARE THE MANDATORY CRIMES PUNISHABLE BY MANDATORY DEATH PENALTY UNDER RA 7659 On the other hand, under R.A. No. 7659, the mandatory penalty of death is imposed in the following crimes: (1)

Qualified bribery

"If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present, he shall suffer the penalty for the offense which was not prosecuted. If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death." (Sec. 4) (2) Kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured or subjected to dehumanizing acts "The penalty shall be death where the kidnapping or detention was committed for the purpose of ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention or is raped, or is subject to torture or dehumanizing acts, the maximum penalty [of death] shall be imposed." (Sec. 8) (3)

Destructive arson resulting in death

"If as a consequence of the commission of any of the acts penalized under this Article, death results, the mandatory penalty of death shall be imposed." (Sec. 10) (4) Rape with the victim becoming insane, rape with homicide and qualified "When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. xxx

xxx

xxx

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent or the victim. 2. when the victim is under the custody of the police or military authorities.

52

3. when the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4. when the victim is a religious or a child below seven (7) years old 5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation." (Sec. 11 ) (5) Sale, administration, delivery, distribution and transportation of prohibited drugs where the victim is a minor or the victim dies "Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec. 13) (6) Maintenance of den, dive, or resort for users of prohibited drugs where the victim is a minor or the victim dies "Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the penalty [of death] shall be imposed in every case where a prohibited drug is administered, delivered or sold to a minor who is allowed to use the same in such place. Should a prohibited drug be the proximate case of the death of a person using the same in such den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 13) (7) Sale, administration, dispensation, delivery, distribution and transportation of regulated drugs where the victim is a minor or the victim dies "Notwi thstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a regulated drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec. 14) (8) Maintenance of den, dive, or resort for users of regulated drugs where the victim is a minor or the victim dies "Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty [of death] herein provided shall be imposed in every case where a regulated drug is administered, delivered or sold to a minor who is allowed to use the same in such place. Should a regulated drug be the proximate cause of death of a person using the same in such den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 15) (9) Drug offenses if convicted are government officials, employees or officers including members of police agencies and armed forces 53

"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13 of Article II and Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the Dangerous Drugs Act of 1972] shall be imposed, if those found guilty or any of the same offenses are government officials, employees or officers including members of police agencies and the armed forces." (Sec. 19) (10) Planting of dangerous drugs as evidence in drug offenses with the mandatory death penalty if convicted are government officials, employees or officers "Any such above government official, employee or officer who is found guilty of 'planting' any dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15, and 16 of Article III (of the Dangerous Drugs Act of 1972) in the person or in the immediate vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein provided." (Sec. 19) (11)

In all the crimes in RA. No. 7659 in their qualified form

"When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum [of death] regardless of mitigating circumstances. The maximum penalty [of death] shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime." (Sec. 23) (People v. Echegaray)

TWO INSTANCES WHEN DEATH MAY BE IMPOSED WHEN CONSTRUED UNDER RA 7659 Thus, construing R.A. No. 7659 in pari materia with the Revised Penal Code, death may be imposed when (1) aggravating circumstances attend the commission of the crime as to make operative the provision of the Revised Penal Code regarding the imposition of the maximum penalty; and (2) other circumstances attend the commission of the crime which indubitably characterize the same as heinous in contemplation of R.A. No. 7659 that justify the imposition of the death, albeit the imposable penalty is reclusion perpetua to death. (People v. Echegaray) WHY DEATH PENALTY IS IMPOSED ON HEINOUS CRIMES The death penalty is imposed in heinous crimes because the perpetrators thereof have committed unforgivably execrable acts that have so deeply dehumanized a person or criminal acts with severely destructive effects on the national efforts to lift the masses from abject poverty through organized governmental strategies based on a disciplined and honest citizenry, and because they have so caused irreparable and substantial injury 54

to both their victim and the society and a repetition of their acts would pose actual threat to the safety of individuals and the survival of government, they must be permanently prevented from doing so. At any rate, this court has no doubts as to the innate heinousness of the crime of rape, as we have held in the case of People v. Cristobal. (People v. Echegaray) WHY RAPE IS A HEINOUS CRIME "Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which every person has a right. It causes grave damage that can mark the victim for life. It is always an intrinsically evil act . . . an outrage upon decency and dignity that hurts not only the victim but the society itself." (People v. Echegaray) WHY CAPITAL PUNISHMENT SHOULD NOT BE ABOLISHED "Capital punishment ought not to be abolished solely because it is substantially repulsive, if infinitely less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition seems to arise from a sentimentalized hyperfastidiousness that seeks to expunge from the society all that appears harsh and suppressive. If we are to preserve the humane society we will have to retain sufficient strength of character and will to do the unpleasant in order that tranquillity and civility may rule comprehensively. It seems very likely that capital punishment is a . . . necessary, if limited factor in that maintenance of social tranquillity and ought to be retained on this ground. To do otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over the necessity of social survival." (People v. Echegaray)

RA 6425 AS AMENDED BY RA 7659 WHEN PENALTY IN NEW LAW NOT FAVORABLE TO ACCUSED IT SHOULD BE RETAINED Appellant in this case was convicted and meted the penalty of life imprisonment and fine of twenty thousand pesos under RA 6425 for transporting more or less 6 kilos of marijuana on July 1990. RA 7659, which took effect on December 31/93, amended the provisions of RA 6425, increasing the imposable penalty for the sale or transport of 750 grams or more of marijuana to reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Such penalty is not favorable to the appellant as it carries the accessory penalties provided under the RPC and has a higher amount of fine which in accordance with ART 22 of the same code should not be given retroactive effect. The court, therefore, finds and so holds that the penalty of life imprisonment and fine in the amount of twenty thousand pesos correctly imposed by the trial court should be retained. (PP v Carreon, 12/9/97) COURTS SHOULD NOT BE CONCERNED ABOUT WISDOM, EFFICACY OR MORALITY OF LAWS

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It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them. The only function of the judiciary is to interpret the laws and, if not in disharmony with the Constitution, to apply them. And for the guidance of the members of the judiciary we feel it incumbent upon us to state that while they as citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and may recommend to the authority or department concerned, its amendment, modification, or repeal, still, as long as said law is in force, they must apply it and give it effect as decreed by the law-making body. (People v. Veneracion)

REASON FOR DURATION OF RECLUSION PERPETUA OF 30 OR 40 YEARS The imputed duration of thirty (30) years for reclusion perpetua, therefore, is only to serve as the basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. (People v. Lucas)

ROBBERY WITH HOMICIDE, NUMBER OF PERSONS KILLED DOES NOT ALTER CHARACTERIZATION OF THE OFFENSE BUT CAN BE APPRECIATED AS AGGRAVATING CIRCUMSTANCE. While the number of persons killed does not alter the characterization of the offense as robbery with homicide, the multiplicity of the victims slain should have been appreciated as an aggravating circumstance. This would preclude an anomalous situation where, from the standpoint of the gravity of the offense, robbery with one killing would be treated in the same way that robbery with multiple killings would be. (People V. Timple)

ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE; PROVISION OF ARTICLE 294 OF THE REVISED PENAL CODE AS AMENDED BY REPUBLIC ACT 7659 CANNOT BE APPLIED RETROACTIVELY; CASE AT BAR. Under Article 294 (1) of the Revised Penal Code, robbery with homicide is punishable by reclusion perpetua to death. In view, however, of the first paragraph of Section 19, Article III of the 1987 Constitution which provides that: "Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua" (Emphasis supplied) only the penalty of reclusion perpetua could be imposed by the trial court. Hence, the attended 56

aggravating circumstances in this case had no impact upon the determination of the proper penalty by the trial court. By Republic Act No. 7659 (effective 31 December 1993), Congress re-imposed the death penalty for certain heinous crimes, including robbery with homicide and robbery with rape. By the same statute, Article 294 of the Revised Penal Code was amended to read as follows: "Any person guilty of robbery with the use of violence against or intimidation on any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. . . . (Emphasis supplied) Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, however, cannot be applied retroactively in this case. To do so would be to subject the appellant to the death penalty which could not have been constitutionally imposed by the court a quo under the law in effect at the time of the commission of the offenses. (People v. Timple)

DANGEROUS DRUGS ACT OF 1972 (R.A. NO. 6425); SECTIONS 15 AND 20 THEREOF AS AMENDED BY R.A. NO. 7659. In People vs. Martin Simon y Sunga, (G.R. No. 93028), decided on 29 July 1994, this Court ruled as follows: (1) Provisions of R.A. No. 7659 which are favorable to the accused shall be given retroactive effect pursuant to Article 22 of the Revised Penal Code. (2) Where the quantity of the dangerous drug involved is less than the quantities stated in the first paragraph of Section 20 of R.A. No. 6425, the penalty to be imposed shall range from prision correccional to reclusion temporal, and not reclusion perpetua. The reason is that there is an overlapping error, probably through oversight in the drafting, in the provisions on the penalty of reclusion perpetua as shown by its dual imposition, i.e., as the minimum of the penalty where the quantity of the dangerous drugs involved is more than those specified in the first paragraph of the amended Section 20 and also as the maximum of the penalty where the quantity of the dangerous drugs involved is less than those so specified in the first paragraph. (3) Considering that the aforesaid penalty of prision correccional to reclusion temporal shall depend upon the quantity of the dangerous drugs involved, each of the component penalties thereof — prision correccional, prision mayor, and reclusion temporal — shall be considered as a principal imposable penalty depending on the quantity, such that the quantity of the drugs enumerated in the second paragraph should then be divided into three, with the resulting quotient, and double or treble the same, as the bases for determining the appropriate component penalty. (4) The modifying circumstances in the Revised Penal Code may be appreciated to determine the proper period of the corresponding imposable penalty or even to effect its reduction by one or more degrees; provided, however, that in no case should such graduation of penalties reduce the imposable penalty lower than prision correccional. (5) In appropriate instances, the Indeterminate Sentence Law shall be applied and considering that R.A. No. 7659 has unqualifiedly adopted the penalties under the Revised Penal Code with their technical signification and effects, then the crimes under the Dangerous Drugs Act shall now be considered as crimes punished by the Revised Penal Code; hence, pursuant to Section 1 of the Indeterminate Sentence Law, the indeterminate penalty which may be imposed shall be one whose maximum shall be within the range of the imposable penalty and 57

whose minimum shall be within the range of the penalty next lower in degree to the imposable penalty. With the foregoing as our touchstones, and it appearing that the quantity of the shabu recovered from the accused in this case is only 0.0958 gram, the imposable penalty under the second paragraph of Section 20 of R.A. No. 6425, as further amended by Section 17 of R.A. No. 7659, should be prision correccional. Applying the Indeterminate Sentence Law, the accused may then be sentenced to suffer an indeterminate penalty ranging from six (6) months of arresto mayor as minimum to six (6) years of prision correccional as maximum. WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED THEFT. (STRAY DECISION) In this case, the stolen property is a Yamaha RS motorcycle bearing plate no. CZ-2932 with sidecar valued at P30,000.00. Since this value remains undisputed, we accept this amount for the purpose of determining the imposable penalty. In simple theft, such amount carries the corresponding penalty of prision mayor in its minimum and medium periods to be imposed in the maximum period. Considering that the penalty for qualified theft is two degrees higher than that provided for simple theft, the penalty of prision mayor in its minimum and medium periods must be raised by two degrees. Thus, the penalty prescribed for the offense committed of qualified theft of motor vehicle is reclusion temporal in its medium and maximum periods to be imposed in its maximum period. (PP -vs- Ricardo Dela Cruz alias Pawid, Manuel dela Cruz alias Pawid, Danilo Dela Cruz and John Doe alias Henry Balintawak and Orlando Padilla y Mendoza, Accused. RICARDO DELA CRUZ alias Pawid, AccusedAppellant. G.R. No. 125936 Feb. 23, 2000 )

PERIOD WHEN BAIL IS EFFECTIVE AFTER CONVICTION IN LOWER COURTS The bail bond that the accused previously posted can only be used during the 15-day period to appeal (Rule 122) and not during the entire period of appeal. This is consistent with Section 2(a) of Rule 114 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 judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it." This amendment, introduced by SC Administrative Circular 12-94 is a departure from the old rules which then provided 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 the accused to continue his provisional liberty on the same bail bond during the period to appeal, consent of the bondsman is necessary. From the record, it appears that the bondsman, AFISCO Insurance Corporation, filed a motion in the trial court on January 06, 1987 for the cancellation of petitioners' bail bond for the latter's failure to renew the same upon its expiration. Obtaining the consent of the bondsman was, thus, foreclosed. ( Aniceto Sabbun Maguddatu and 58

Laureana Sabbun Maguddatu, Petitioners, -vs- Honorable COURT OF APPEALS (Fourth Division and People of the Philippines, Respondents. G.R. No. 139599, Feb. 23, 2000) WHEN ABUSE OF SUPERIOR STRENGTH IS PRESENT. We find, however, that the aggravating circumstance of abuse of superior strength attended the killing. "To appreciate abuse of superior strength as an aggravating circumstance, what should be considered is not that there were three, four or more assailants of one victim, but whether the aggressors took advantage of their combined strength in order to consummate the offense. It is therefore necessary to show that the attackers cooperated in such a way as to secure advantage of their superiority in strength." In this case, appellants and their companions purposely gathered together and armed themselves to take advantage of their combined strength to ensure that Reynaldo Danao would be able to kill the victim without any interference from other bystanders. However, not having been alleged in the Information, abuse of superior strength can only be considered as a generic aggravating circumstance. (PP -vs- CIELITO BULURAN Y RAMIREZ and LEONARDO VALENZUELA Y CASTILLO, Accused-Appellants. G.R. No. 113940, Feb. 15, 2000) USE OF MOTOR VEHICLE AS QUALIFYING AGGRAVATING CIRCUMSTANCE The use of a motor vehicle qualifies the killing to murder if the same was perpetrated by means thereof. (PP -vs- THADEOS ENGUITO Defendant-Appellant. G.R. 128812, Feb. 28, 2000) ELEMENTS OF EVIDENT PREMEDITATION (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the offender had clung to his determination; and (3) sufficient lapse of time between the determination and the execution to allow the offender to reflect on the consequences of his act. (PP -vs- ROGELIO GALAM, Accused-Appellant. G.R. No. 114740, Feb. 15, 2000) WHEN NIGHTTIME IS AGGRAVATING Nighttime as an aggravating circumstance must have specially been sought to consummate the crime, facilitate its success or prevent recognition of the felon. (PP -vs- CONSTANCIO MERINO and ARNULFO SIERVO, Accused-Appellants. G.R. No. 132329, Dec. 17, 1999) TREACHERY IS PRESENT ON SECOND STAGE OF ACCIDENT

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There is treachery when the offender commits any of the crimes against the person employing means, methods or forms in the execution thereof which tend directly and specifically to insure its execution without risk to himself arising form the defense which the offended party might make. As earlier mentioned, the deceased was already rendered completely helpless and defenseless when he was stabbed by Pedro Lumacang. Although he was able to run a short distance, he had absolutely no means of defending himself from the three brothers who were armed with hunting knives, bent on finishing him off. The wounded victim had not even so much as a stick or a stone to parry off their blows. It should be noted, however, at this point that inasmuch as treachery has been appreciated as a qualifying circumstance, abuse of superior strength should not have been considered separately inasmuch as it is absorbed in treachery. (PP -vsPEDRO LUMACANG, PABLO LUMACANG and DOMINGO LUMACANG, Accused-Appellants. G.R. No. 120283, Feb. 1, 2000) WHY DWELLING IS AGGRAVATING "The home is a sort of sacred place for its owner. He who goes to another's house to slander him, hurt him or do him wrong, is more guilty than he who offends him elsewhere." (PP -vs- JOSE & NESTOR BiñAS, Accused-Appellant. G.R. No. 121630, Dec. 8, 1999) EVEN FRONTAL ATTACK WOULD AMOUNT TO TREACHERY Moreover, Milyn Ruales also testified that the knife used by accused was hidden from view. Thus, Isabel Ruales was not prepared for such a violent attack, especially considering that, at the time, she was unarmed and was burdened with a large basket filled with about six kilos of corn and dried fish hanging from her shoulders and thus, could not have possibly warded off the blow or run away from her assailant. Although Milyn Ruales described the attack having been frontal, this does not negate treachery since the essence of treachery is the suddenness and unexpectedness of the attack, giving the victim no opportunity to repel it or offer any defense of his person. Thus, we hold that the trial court correctly appreciated the qualifying circumstance of treachery. (PP -vsCORNELIA SUELTO alias "ELY" alias "ROGELIA SUELTO", G.R. No. 126097, Feb. 8, 2000) DATE OF EFFECTIVITY OF RA 7659, ETC. Republic Act No. 7659 took effect on 31 December 1993. Accordingly, the said law only applies to crimes defined therein, including rape, which were committed after its effectivity. It cannot be applied retroactively because, to do so, would go against the constitutional prohibition on ex post facto laws. For this reason, in order for the death penalty to be imposable, it is incumbent upon the prosecution to establish beyond a shadow of doubt that the case of the accused is already covered by Republic Act No. 7659. AN EX POST FACTO LAW HAS BEEN DEFINED AS ONE WHICH (a) makes criminal an act before the passage of the law and which was innocent when done, and punishes such an act; (b)

aggravate a crime, or makes it greater than it was, when committed; 60

(c) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (d) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; (e) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and (f) deprives person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (PP -vs- CHARITO ISUG MAGBANUA, G.R. No. 128888, Dec. 3, 1999)

ILLEGAL POSSESSION OF FIREARMS (REPUBLIC ACT NO. 8294)

SECTION 1. Section 1 Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: "SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. "The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. "If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.

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"If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat. "The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. "The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor." SECTION 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: "SECTION 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. — The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person. "When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. "If the violation of this Section is in furtherance of, or incident to, or in connection with the crime of rebellion, insurrection, sedition or attempted coup d'etat, such violation shall be absorbed as an element of the crimes of rebellion, insurrection, sedition or attempted coup d'etat. "The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the explosives owned by such firm, company, corporation or entity, to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs."

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SECTION 3. Section 5 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: "SECTION 5. Tampering of Firearm's Serial Number. — The penalty of prision correccional shall be imposed upon any person who shall unlawfully tamper, change, deface or erase the serial number of any firearm." SECTION 4. Section 6 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: "SECTION 6. Repacking or Altering the Composition of Lawfully Manufactured Explosives. — The penalty of prision correccional shall be imposed upon any person who shall unlawfully repack, alter or modify the composition of any lawfully manufactured explosives."

SECTION 5. Coverage of the Term Unlicensed Firearm. — The term unlicensed firearm shall include: 1) firearms with expired license; or 2) unauthorized use of licensed firearm in the commission of the crime. RULE ON ILLEGAL POSSESSION OF FIREARMS BEFORE AN ACCUSED MAYBE CONVISTED In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: a.

the existence of the subject firearm; and

b. the fact that the accsused who owned or possessed it does not have the license or permit to possess the same. (People v. Castillo, 325 scra 613) The essence of the crime of illegal possession is the possession, whether actual or constructive, of the subject firearm, without which there can be no conviction for illegal possession. After possession is established by the prosecution, it would only be a matter of course to determine whether the accused has a license to possess the firearm. (People v. Bansil, 304 scra 384) Possession of any firearm becomes unlawful only if the necessary permit or license therefor is not first obtained. The absence of license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise, the negative fact of lack or absence of license constitutes an essential ingredient of the offense which the prosecution has the duty not only to allege but also to prove beyond reasonable doubt. (People v. Khor, 307 scra 295)

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"To convict an accused for illegal possession of firearms and explosives under P.D. 1866, as amended, two (2) essential elements must be indubitably established, viz: (a) the existence of the subject firearm or explosive which may be proved by the presentation, of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosive Unit that the accused has no license or permit to possess the subject firearm or explosive." (Del Rosario v. People, 05/31/01) We stress that the essence of the crime penalized under P.D. 1866 is primarily the accused's lack of license or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited by law. (People v. Cortez, 324 scra 335, 344) Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no malice or intent to commit a crime need be proved. (People v. Lubo, 101 Phil. 179) To support a conviction, however, there must be possession coupled with intent to possess (animus possidendi) the firearm. (Supra) PRESENT MEANING OF ILLEGAL POSSESSION OF FIREARM Unlicensed firearm no longer simply means a firearm without a license duly issued by lawful authority. The scope of the term has been expanded in Sec.5 of R.A. 8294. Thus, the unauthorized use of a weapon which has been duly licensed in the name of its owner/possessor may still aggravate the resultant crime. In the case at bar, although appellants may have been issued their respective licenses to possess firearms, their carrying of such weapons outside their residences and their unauthorized use thereof in the killing of the victim may be appreciated as an aggravating circumstance in imposing the proper penalty for murder. (Pp. V. Molina; Gr 115835-36; July 22, 1998)

ILLEGAL POSSESSION OF FIREARM ONLY SPECIAL AGGRAVATING CIRCUMSTANCE IN CRIMES OF HOMICIDE, ETC. Where murder or homicide was committed, the separate penalty for illegal possession shall no longer be meted out since it becomes merely a special aggravating circumstance. This statutory amendment may have been an offshoot of our remarks in Pp. V. Tac-an and Pp. V. Quijada :

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“Neither is the 2nd paragraph of Sec.1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker because the term “penalty” in the subject provision is obviously meant to be the penalty for illegal possession of firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an : There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under an information charging homicide or murder, the fact that the death weapon was an unlicensed firearm cannot be used to increase the penalty for the 2nd offense of homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The essential point is that the unlicensed character or condition of the instrument used in destroying human life or committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code.

A law may, of course, be enacted making use of an unlicensed firearm as a qualifying circumstance.” (People v. Molina; GR 115835-36, July 22, 1998)

NEW PENALTY FOR LOW POWERED FIREARM IN ILLEGAL POSSESSION OF FIREARMS Petitioner, fortunately for him, is nonetheless not entirely bereft of relief. The enactment and approval on 06 Jun 1997 of RA 8294, being favorable to him, should now apply. Under this new law, the penalty for possession of any low powered firearm is only prision correccional in its maximum period and a fine of not less than P15,000.00. Applying the Indeterminate Sentence Law, the present penalty that may be imposed is anywhere from two years, four months and one day to four years and two months of prision correccional in its medium period, as minimum, up to anywhere from four years, two moths and one day to six years of prision correccional in its maximum period, as maximum.. The court in addition, may impose a fine consistent with the principle that an appeal in a criminal case throws the whole case open for review by the appellate tribunal. (Mario Rabaja v CA, et al., Oct 8/97)

ACTS PUNISHABLE: 1. “upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition” 2. "If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.”

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3. "If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.” 4. "The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.” 5. “The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor” 6. “any person who shall unlawfully tamper, change, deface or erase the serial number of any firearm”. 7. “any person who shall unlawfully repack, alter or modify the composition of any lawfully manufactured explosives”. MALUM PROHIBITUM The offense of illegal possession of firearm is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses. (People v De Gracia, 7/6/94)

OWNERSHIP IS NOT AN ESSENTIAL ELEMENT OF ILLEGAL POSSESSION The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one’s control and management.

INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS ESSENTIAL A distinction should be made between criminal intent and intent to possess. While mere possession without criminal intent is sufficient to convict a person for illegal possession of firearms, it must still be shows that there was animus possidendi or an intent to possess on the part of the accused. There is no evidence of animus possedendi if the offender was in possession of an unlicensed firearm only on the occasion of the shooting for 66

a transitory purpose and for the short moment in connection with the shooting. Lack of evidence is an essential element of the crime and that the same must be alleged in the Information and duly proved. (People -vs- Macasling, 237 SCRA 299) Ownership of the gun is immaterial or irrelevant in violation of PD 1866, as amended. One may be convicted of possession of an unlicensed firearm even if he is not the owner thereof. (People -vs- Reynaldo Cruz, GR No. 76728, August 3, 1988) Even if the gun is "paltik," there is a need to secure license for the gun, and if found without any license therefor, the offender is liable for violation of PD 1866. (People vs- Filemon Ramos, 222 SCRA 557) If an unlicensed firearm is used to commit a crime other than homicide or murder, such a direct assault with attempted homicide, the use of an unlicensed firearm is neither an aggravating circumstances nor a separate offense. Since the law uses the word Homicide or Murder, possession of an unlicensed firearm is not aggravating in Attempted Homicide. (People -vs- Walpan Ladjaamlam, et al., GR No. 136149-51, September 19, 2000) Where the accused was charged of Murder and violation of PD 1866 and that, in the meantime, Republic Act 8294 took effect, the accused should be convicted only of Murder. The use of unlicensed firearm should not be considered as aggravating because the Court will have to impose the death penalty which cannot be allowed because, at the time of the commission of the offense, the death penalty cannot as yet, be imposed. However, in his concurring opinion, Chief Justice Hilario Davide, Jr. declared that, under such a factual milieu, the charge of violation of PD 1866 should continue and if the accused is found guilty, he should be meted the death penalty under Republic Act 8294. (People -vs- Victor Macoy, GR No. 126253, August 16, 2000) Where the prosecution failed to adduce the gun in evidence coupled with the fact that per Certification of the FEU, " no available information regarding the license for the gun and the inconsistency in the evidence of the prosecution, the latter failed to discharge its burden. (People -vs- Ricolito Rugay, et al., 291 SCRA 692) Mere possession without criminal intent is sufficient on which to render a judgment of conviction for violation of PD 1866, as amended. However, there must be animus possedendi or intent to possess without any license or permit. Good faith is not a defense. Neither is lack of criminal intent. (People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158)

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Temporary, incidental, casual or harmless possession of firearm is not punishable. Hence, stealing a firearm to render the owner defenseless is not a crime under the law. (idem, supra) Possession includes actual physical possession and constructive possession. The animus can be determined from the overt acts of the accused prior to or coetaneous with and other surrounding circumstances of such possession. Hence, where the accused found a gun and was on his way to deliver the gun to the police authority and was arrested, in the process, there is no animus possedendi. (People -vs- Rodolfo Dela Rosa, et al., supra) Even if a paltik is a homemade gun and thus illegally manufactured nevertheless, the Prosecution is burdened to prove that the accused has no license for the gun. (People -vs- Felimon Ramos, et al., 222 SCRA 557) For the accused to be guilty of violation of PD 1866 as amended the Prosecution must prove: (a) the existence of the subject firearm; (b) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same. (People -vs- Ricolito Rugay, et al., 291 SCRA 692) Where the accused is convicted of violation of Republic Act 8294 and meted a penalty less than six (6) years, and a fine of P15,000.00, he should be ordered to undergo subsidiary imprisonment in case of insolvency. (Mario Rabaja -vs- Court of Appealss, et al., 280 SCRA 290) In the light of "People -vs- Martin Simon," 234 SCRA 555, and Articles 13 and 14, in relation to Article 63, of the Revised Penal Code and the Indeterminate Sentence Law for violation of the Revised Penal Code may now be applied for violation of PD 1866, as amended and Rep[ublic Act 6425, as amended. Even if a person is licensed to possess a firearms but brings out firearm outside of his residence without permit therefor, he is guilty of violation of the last paragraph of Section 1 of PD 1866, as amended. A Mission Order cannot take the place of a license. A Mission Order can only be issued to one licensed to possess a firearm. (Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA 287) If the accused borrowed a gun from another who is licensed to possess firearm, may the former be liable for violation of PD 1866, as amended? Yes. Even if the gun is licensed to one and lends it to another, the latter is liable for violation of PD 1866, as amended. A license to possess a firearm and a permit to carry a licensed firearm outside of his residence is not transferable. (Pedrito Pastrano -vs- Court of Appeals, et al., supra)

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Even if the firearm subject of the crime is not adduced in evidence one may still be convicted of possession of an unlicensed firearm as long as proof was adduced that the acused was in possession of a firearm. (People -vs- Felicisimo Narvasa, GR No. 128618, November 16, 1998) NOTE: Under Republic Act 8294, the penalty depends upon the caliber of the gun. Suppose there is no testimony as to the caliber of the gun? Where a security guard was given by his employer, a security agency, a firearm, and the accused assumed that the employer secured the license for the firearm but that it turned out that the employer failed to get any license, the security guard is not criminally liable. The security guard has the right to assume that the security agency secured the license. (Ernesto Cuenca -vs- People, 33 SCRA 522) If a constabulary soldier entrusted his gun to the accused for safekeeping and later the accused found in possession of the gun, the accused is guilty of possession of unlicensed firearm. To exculpate himself, the accused must prove absence of animus possidendi. (People -vs- Perlito Soyang, et al., 110 Phil. 565, 583) A secured a loan from B and pledged his unlicensed firearm as security for the loan. A promised to pay his loan and retrieve the firearm as soon as he had money. B found in possession of the unlicensed firearm. For the court to sustain the contention of B is to authorize the indefinite possession by B of the unlicensed firearm because there was no way to determine when A could pay his account. (People -vs- Cornelio Melgas, 100 Phil. 298) If a licensed firearm if used to commit Murder or Homicide, such circumstances is merely a special aggravating circumstance which must be alleged in the Information and cannot be offset by any mitigating circumstance. (People -vs- Meriato Molina, et al., G.R. No. 115835, July 22, 1998; People -vs- Narvasa, G.R. no. 128618 November 18, 1998) The Decision of the Supreme Court in People -vs- Paterno Tac-an, 182 SCRA 601; People -vs- Jesus Deunida, and People -vs- Barros and People -vs- Daniel Quijada 259 SCRA 191 had been overtaken by Republic Act 8294. Under the amendment, the death penalty may now be imposed if the accused is convicted of Murder with the use of licensed or unlicensed firearms. As long as the accused is proved to have been in possession of the unlicensed firearm even if the firearm is not adduced in evidence, conviction under the law is proper. (People -vs- Felicisimo Narvasa, supra) Republic Act 8294 took effect on July 6, 1997.

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If the accused is charged of Murder and violation of PD 1866 and during the trial, Republic Act 8294 took effect, the accused cannot be convicted of violation of PD 1866, as amended. Neither should the possession of an unlicensed firearm be considered as an aggravating circumstance as it will be less favorable to the accused. If the accused used a sumpak to kill the victim, the prosecution must prove that he had no license or permit to possess the sumpak. (People -vs- Cipriano de Vera, G.R. No. 121462-63, June 9, 1999) Compare "People -vs- Wilfredo Filoteo," 290 SCRA 627 where the accused was convicted of Murder and violation of PD 1866 and during the pendency of the appeal, Republic Act 8294 took effect. Our Supreme Court affirmed the conviction of the Accused of two (2) crime of Homicide and violation of PD 1866, as amended, and applied the penalty for the crimes under the amendment. In "People -vs- Veriato Molina, et al.," 292 SCRA 742, our Supreme Court En Banc declared that where the accused was convicted of said crio,es, by the Trial Court but that during the pendency of the appeal, with the Supreme Court, Republic Act 8294 took effect, the accused should only be convicted of Murder with the use of an unlicensed firearm as mere a special aggravating circumstance. Murder, under Republic Act 8294, is used in its generic term and, hence, includes Parricide (People versus Octavio Mendoza, GR No. 109270-80, January 18,1999) A United States carbine M1, caliber .3-0 is a high-powered gun because it is capable of emitting two or three bullets in one squeeze. (People -vs- Eduardo Gutierrez, GR No. 132878, September 1999) It is not necessary that the firearm be produced and offered in evidence for Republic Act 8294 to apply. It is not enough that there is evidence of the existence of the gun which can be established either by testimony or presentation of the gun itself. Possession of an unlicensed firearm and used in killing is a special aggravating circumstance. (People -vs- Felicisimo Narvasa, GR No. 128618, November 18, 1998) The Decision of the Supreme Court in People versus Rex Bergante, et. al., GR No. 120369, February 27, 1998, that the use of an unlicensed firearm to commit murder is only a generic aggravating circumstance is no longer true. Possession under the law may either be actual physical possession or constructive possession. However, although the crime under PD 1866, as amended, is malum prohibitum, however, there must be animus possidendi, or intent to possess. Animus possidendi may be inferred from the fact that an unlicensed firearm is under the apparent control and power of the accused. however, animus possidendi may be contradicted if a person in possession of an unlicensed firearm does not assert a right thereto.

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If the possession of an unlicensed gun is merely temporary, incidental or transient, the same is not punishable under PD 1866. However, the law does not provide for a fixed period of time for one to be deemed in "possession" of an unlicensed firearm. (People -vs- Rolando Verches, 233 SCRA 174). Each factual milieu must be considered. IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL POSSESSION OF FIREARMS) P.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6, 1997 by Republic Act 8264. Aside from lowering the penalty for said crime, R.A. 8294 also provided that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as a special aggravating circumstance. This amendment has two (2) implications: first, the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense, but merely as a special aggravating circumstance; second, as only a single crime (homicide or murder with the aggravating circumstance of illegal possession of firearm) is committed under the law, only one penalty shall be imposed on the accused. Prescinding therefrom, and considering that the provisions of the amendatory law are favorable to herein appellant, the new law should be retroactively applied in the case at bar. It was thus error for the trial court to convict the appellant of two (2) separate offenses, i.e., Homicide and Illegal Possession of Firearms, and punish him separately for each crime. Based on the facts of the case, the crime for which the appellant may be charged is homicide, aggravated by illegal possession of firearm, the correct denomination for the crime, and not illegal possession of firearm, aggravated by homicide as ruled by the trial court, as it is the former offense which aggravates the crime of homicide under the amendatory law. EVEN IF ACCUSED ADMITTED THAT HE HAS NO LICENSE, SUCH ADMISSION IS NOT SUFFICIENT PROOF OF ILLEGAL POSSESSION OF FIREARM Hence, in the case at bar, although the appellant himself admitted that he had no license for the gun recovered from his possession, his admission will not relieve the prosecution of its duty to establish beyond reasonable doubt the appellant's lack of license or permit to possess the gun. In People vs. Solayao, we expounded on this doctrine, thus: "x x x by its very nature, an admission is the mere acknowledgement of a fact or of circumstances from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt." In other words, it is a statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction. From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond doubt the commission of the crime charged. "Moreover, said admission is extrajudicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: 71

An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof. "Not being a judicial admission, said statement by accusedappellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license." (emphasis supplied) (PP -vs- JULIAN CASTILLO Y LUMAYRO, G.R. No. 131592-93, Feb. 15, 2000) ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS To convict an accused for illegal possession of firearms and explosive under P.D. 1866 as amended, two (2) essential elements must be indubitably established, viz: (a) the existence of the subject firearm or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive. In the case at bar, the prosecution failed to prove the second element of the crime, i.e., the lack of license or permit of appellant Cortez to possess the hand grenade. Although the hand grenade seized by PO2 Santos from appellant was presented in court, the records bear that PO2 Santos did not submit the grenade to the PNP Firearms and Explosives Unit for verification. This explains why no certification or testimony was adduced by the prosecution at the trial to prove that appellant Cortez was not licensed to possess the explosive. The failure of the prosecution to adduce this fact is fatal to its cause. We stress that the essence of the crime penalized under P.D. 1866 is primarily the accused's lack of license or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited by law. MAY EXPLOSIVES BE GIVEN A PERMIT OR LICENSE? In the case of an explosive, a permit or license to possess it is usually granted to mining corporations, military personnel and other legitimate users. (PP -vs- BERNIE CORTEZ Y NATANIO, ET AL., G.R. Nos. 131619-20, Feb. 1, 2000) UNDER R.A. 8294 A SEPARATE CONVICTION FOR ILLEGAL POSSESSION OF FIREARMS AND FOR HOMICIDE IS NOT ALLOWED With respect to the conviction of accused-appellant for illegal possession of firearms under P.D. No. 1866, it was held in the case of People vs. Molina and reiterated in the recent case of People vs. Ronaldo Valdez, that in cases where murder or homicide is committed with the use of an unlicensed firearm, there can be no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866 in view of the amendments introduced by Republic Act No. 8294. Thereunder, the use of unlicensed 72

firearm in murder or homicide is simply considered as an aggravating circumstance in the murder or homicide and no longer as a separate offense. Furthermore, the penalty for illegal possession of firearms shall be imposed provided that no crime is committed. In other words, where murder or homicide was committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance. (PP -vs- AUGUSTO LORETO RINGOR, JR., G.R. No. 123918, Dec. 9, 1999)

ANTI-WIRE TAPPING LAW (RA 4200) Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dectaphone or walkietalkie or tape recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

LISTENING TO CONVERSATION IN EXTENSION LINE OF TELEPHONE IS NOT WIRE-TAPPING An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA 4200 as the use thereof cannot be considered as tapping the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (66 SCRA 113,120) A PERSON CALLING ANOTHER BY PHONE MAY SAFELY PRESUME THAT THE OTHER MAY HAVE AN EXTENSION LINE AND RUNS THE RISK OF BEING HEARD BY A

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3RD PARTY. An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place to place within a radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another. MERE ACT OF LISTENING TO A TELEPHONE CONVERSATION IN AN EXTENSION LINE IS NOT PUNISHED BY ANTI-WIRE TAPPING LAW It can be readily seen that our lawmakers intended to discourage through punishment, persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated devices in RA 4200 or others of similar nature. We are of the view that an extension telephone is not among such devices or arrangements.

RAPE AS CRIME AGAINST PERSONS (R.A. 8353) Rape, When And How Committed "1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: "a) Through force, threat, or intimidation; "b) When the offended party is deprived of reason or otherwise unconscious; "c) By means of fraudulent machination or grave abuse of authority; and "d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. "2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. WHEN INEXCUSABLE IMPRUDENCE ON PART OF VICTIM AS TO IDENTITY OF OFFENDER IS NOT RAPE

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The evidence shows that this mistake was purely a subjective configuration of Zareen's mind — an assumption entirely contrived by her. Our impression is that Silvino had nothing to do with the formulation of this belief; he did nothing to mislead or deceive Zareen into thinking that he was Enrico. In fact, Silvino precisely, and confidently, told her, "Zareen, it's not Ricky, it's Jun. I love you." It is thus obvious that whatever mistake there was could only be attributable to Zareen — and her inexcusable imprudence — and to nobody else. Clearly, the fault was hers. She had the opportunity to ascertain the identity of the man but she preferred to remain passive and allow things to happen as they did. Silvino never used force on her and was even most possibly encouraged by the fact that when he pulled down her panties she never objected; when her legs were being parted she never objected; and, when he finally mounted her she never objected. Where then was force? Third, Zareen was not deprived of reason or otherwise unconscious when the accused had intercourse with her. Her lame excuse was that she was half-asleep. However she admitted that in the early morning of 1 May 1994 she woke up to find someone removing her underwear. Thuswise it cannot be said that she was deprived of reason or unconscious. She knew, hence was conscious, when her panties were being pulled down; she knew, hence was conscious, when her legs were being parted to prepare for the sexual act; she knew, hence was conscious, when the man was pulling down his briefs to prepare himself likewise for the copulation; she knew, hence was conscious, when the man mounted her and lusted after her virtue. Her justification was that she never objected to the sexual act from the start because she thought that the man was her boyfriend with whom she was having sex almost every night for the past three (3) weeks as they were getting married and wanted already to have a baby. In other words, her urge could not wait for the more appropriate time. (People v. Salarza, Jr.)

NATURE OF INTIMIDATION IN RAPE CASES Intimidation is addressed to the mind of the victim. It is subjective and its presence cannot be tested by any hard-and-fast rule, but must be viewed in the light of the victim’s perception and judgement at the time of the crime. In the case at bar, at the time the crime was committed, the victim was 40 yrs. old, 5 months pregnant, unarmed and married to a person older than her by almost 20 yrs.. In contrast, appellant was in his 20’s, armed with a gun and purportedly in the company of several NPA members. The crime happened in the evening and in a place where help was impossible. The nearest neighbor of the victim is some 3 kms. from their hut. Considering all these circumstances, we hold that the victim was intimidated to submit to the lustful desire of the appellant. (Pp. V. Mostrales; GR 125937, Aug.28, 1998)

WHEN INTIMIDATION IS SUSTAINED BY MORAL ASCENDANCY IN RAPE Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victim's and is therefore subjective, it must be viewed in light of the victim's perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced 75

fear — fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victim's submission to the sexual act voluntary. In any event, in a rape committed by a father against his own daughter, as in this case, the former's moral ascendancy or influence over the latter substitutes for violence or intimidation. Likewise, it must not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with the equanimity of disposition and with nerves of steel, or to act like a mature and experienced woman who would know what to do under the circumstances, or to have courage and intelligence to disregard the threat. Even in cases of rape of mature women, this Court recognized their different and unpredictable reactions. Some may shout; some may faint; and some may be shocked into insensibility; while others may openly welcome the intrusion. (People v. Agbayani; GR 122770, Jan. 16, ’98) TEST TO DETERMINE WHETHER A WOMAN VOLUNTARILY SUBMITTED TO SEXUAL INTERCOURSE Physical resistance is not the sole test to determine whether or not a woman involuntarily succumbed to the lust of an accused. Jurisprudence holds that even though a man lays no hand on a woman, yet if by array of physical forces he so overpowers her mind that she does not resist or she ceases resistance through fear of greater harm, the consummation of unlawful intercourse by the man is rape. (Pp. V. Mostrales; GR 125937, Aug.28, 1998)

DATE OF COMMISSION OF RAPE NOT ESSENTIAL ELEMENT OF SAID CRIME It is settled that even a variance of a few months between the time set out in the indictment and that established by the evidence during the trial has been held not to constitute an error so serious as to warrant reversal of a conviction solely on that score. The failure of the complainant to state the exact date and time of the commission of the rape is a minor matter (Pp. V. Bernaldez; GR 109780,Aug. 17, 1998)

EXAMPLE OF VIRTUAL CONFESSION OF FACT AND NOT IN LAW IN CASES OF RAPE It is conceded that after the rape, Accused sent complainant two letters in which he implored her forgiveness and offered to leave his wife so that he could be with her. In fine, appellant sealed his own fate by admitting his crime under a seal of virtual confession in fact, if not in law. (Pp. V. Prades; GR 127569, July 30, 1998)

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CHILD BORN BY REASON OF RAPE MUST BE ACKNOWLEDGED BY OFFENDER UPON ORDERS OF THE COURT Furthermore, since ANALIZA begot a child by reason of the rape, DANTE must acknowledge and support the offspring pursuant to Article 345 of the Revised Penal Code in relation to Article 201 of the Family Code. (People v. Alfeche)

DWELLING AS AGGRAVATING CIRCUMSTANCE IN RAPE CASES It is clear, however, that the aggravating circumstance of dwelling is attendant in the commission of the crime. Article 14(5) of the Revised Penal Code provides that this circumstance aggravates a felony where the crime is committed in the dwelling of the offended party, if the latter has not given provocation. In the instant case, the aforesaid circumstance of dwelling was definitely present in the commission of the crime of rape with the use of a deadly weapon. (Pp. V. Prades; GR 127569, July 30, 1998)

INDEMNITY IN CERTAIN CASES OF RAPE The recent judicial prescription is that the indemnification for the victim shall be in the increased amount of P75,000.00 if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory laws. (Pp. V. Prades; GR127569, July 30, 1998)

MORAL DAMAGES NEED NOT BE ALLEGED AND PROVED IN CASES OF RAPE Indeed, the conventional requirement of allegata et probata in civil procedure and for essentially civil cases should be dispensed with in criminal prosecutions for rape with the civil aspect included therein, since no appropriate pleadings are file wherein such allegations can be made. (Pp. V. Prades; GR 127569, July 30, 1998)

MEANING OF DEADLY WEAPON IN CASES OF RAPE A “deadly weapon” is any weapon or instrument made and designed for offensive or defensive purposes, or for the destruction of life or thee infliction of injury; or one which, from the manner used, is calculated or likely to produce death or serious bodily harm. In our jurisdiction, it has

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been held that a knife is a deadly weapon. (Pp. V. Alfeche; GR 124213, Aug. 17, 1998) FORCE AND INTIMIDATION NOT NEEDED IN RAPE OF RETARDATE Although the information alleged “force, threats, and intimidation”, it nevertheless also explicitly stated that Tessie is a “mentally retarded person.” We have held in a long line of cases that if the mental age of a woman above 12 years is that of a child below 12 years, even if she voluntarily submitted to the bestial desires of the accused, or even if the circumstances of force or intimidation or of the victim being deprived of reason or otherwise unconscious are absent, the accused would still be liable for rape under the 3rd circumstance of Art. 335. The rationale therefor is that if sexual intercourse with a victim under 12 years of age is rape, then it should follow that carnal knowledge of a woman whose mental age is that of a child below 12 years would constitute rape. (People v. Hector Estares; 12/5/97) USE OF FORCE OR INTIMIDATION NOT AN ELEMENT OF STATUTORY RAPE In any event, the use of force or intimidation is not an element of statutory rape. The offense is established upon proof that the accused sexually violated the offended party, who was below 12 years of age at the time of the sexual assault. In other words, it is not relevant to this case whether appellant slapped or boxed the victim, or whether he used a singlebladed or a double-edged knife. (People v. Oliva; 12/5/97)

RAPE CAN BE COMMITTED IN MANY DIFFERENT PLACES It has been emphasized that rape can be committed in many different places, including places which to many would appear to be unlikely and high-risk venues for sexual advances. Thus, rape has been committed even in places where people congregate, in parks, along the roadside, within school premises, inside a house where there are other occupants, and even in the same room where other members of the family are also sleeping. (People v. Gementiza; 1/29/98)

WHEN SWEETHEART DEFENSE IS TENABLE IN RAPE The “sweetheart” defense put up by the accused merits serious consideration. While the theory does not often gain favor with the court, such is not always the case if the hard fact is that the accused and the supposed victim are in fact intimately related except that, as is true in most cases, the relationship is either illicit, or the parents are against it. In such instances, it is not improbable that when the relationship is uncovered, the victim’s parents would take the risk of instituting a criminal action rather than admit to the indiscretion of their daughter. And this, as the records

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reveal, is what happened in this case. (People vs Rico Jamlan Salem, October 16/97) A MEDICAL EXAMINATION OF VICTIM IS NOT ELEMENT OF RAPE A medical examination is not an indispensable element in a prosecution for rape. The accused may be convicted on the sole basis of complainant’s testimony, if credible, and the findings of the medico-legal officer do not disprove the commission of rape. People v Jenelito Escober Y Resuento, Nov 6/97) HEINOUSNESS OF RAPE OF ONE’S DESCENDANT In the case before us, the accused raped his own flesh and blood at such a tender age of eleven. He thus violated not only he purity and her trust but also the mores of his society which he has scornfully defined. By inflicting his animal greed on her in a disgusting coercion of incestuous lust, he forfeits all respect as human being and is justly spurned by all, not least of all, by the fruit of his own loins whose progeny he has forever stained with his shameful and shameless lechery. People v jenelito Escober Y Resuento, Nov 6/97) MERE DISCIPLINARY CHASTISEMENT IS NOT ENOUGH TO DOUBT CREDIBILITY OF RAPE VICTIM WHO IS A DESCENDANT Mere disciplinary chastisement is not strong enough to make daughters in a Filipino family invent a charge that would only bring shame and humiliation upon them and their own family and make them the object of gossip among their classmates and friends. It is unbelievable that Jacqueline would fabricate a serious criminal charge just to get even with her father and to emphasize with her sister. The sisters would not contrive stories of defloration and charge their own father with rape unless these stories are true. For that matter, no young Filipina of decent repute would falsely and publicly admit that she had been ravished and abused considering the social stigma thereof. People v Tabugoca, GR No. 125334) SODOMY IS NOT THE SAME AS IGNOMINY NOR CAN IT BE CONSIDERED AS IGNOMINY. "Ignominy is a circumstance pertaining to the moral order, which adds disgrace and obliloquy to the material injury caused by the crime." Thus, for ignominy to be appreciated as an aggravating circumstance in the instant case, it must be shown that the sexual assault on Francis Bart was done by accused-appellant to put the former to shame before killing him. This is clearly not the case here for accused-appellant's intention was shown to be the commission of sexual abuse on the victim as an act of revenge for his similar experience as a child.

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WHEN THE INFORMATIONS ON RAPE CASES FAILED TO ALLEGE ACTUAL RELATIONSHIP ETC. HENCE DEATH PENALTY CANNOT BE IMPOSED In this case, the information's in Criminal Case Nos. 8899-8900 alleged that accused-appellant, "who is the stepfather of the private offended party" by "force, violence and intimidation" succeeded in having carnal knowledge of the latter when she was then 14 and 13 years old, respectively. On the otherhand, the information in Criminal Case Nos. 8945-8946 alleged that accused-appellant, "who…. is the stepfather of victim Jenny Macaro" succeeded in having carnal knowledge of the latter, who was a girl below 12 years old. As already noted, contrary to these allegations, accused-appellant is not really the stepfather of complainants Lenny and Jenny because accused-appellant and complainants' mother were not legally married but were merely living in common-law relation. In fact, Lenny and Jenny interchangeably referred to accused-appellant as their stepfather, "kabit," "live-in partner ng Mama ko," "tiyo," and "tiyuhin." Complainants' sister-in-law, Rosalie Macaro, also testified that her "motherin-law is not legally married to accused-appellant." Accused-appellant likewise said on direct and cross-examination that he was not legally married to the mother of the complainants, and he referred to her as his livein partner. This was confirmed by Emma Macaro, mother of the complainants. Although the rape of a person under eighteen (18) years of age by the common-law spouse of the victim's mother is punishable by death, this penalty cannot be imposed on accused-appellant in these cases because this relationship was not what was alleged in the information's. What was alleged was that he is the stepfather of the complainants. INFORMATION IN RAPE CASES WITH USE OF DEADLY WEAPON MUST BE ALLEGED OTHERWISE DEATH PENALTY, CANNOT BE IMPOSED Neither can accused-appellant be meted the death penalty in Criminal Case No. 8900 where he committed the rape after threatening the victim, Lenny Macaro, with a knife. Under Art. 335 of the Revised Penal Code, simple rape is punishable by "reclusion perpetua." When the rape is committed "with the use of a deadly weapon," i.e., when a deadly weapon is used to make the victim submit to the will of the offender, the penalty is ”reclusion perpetua to death." This circumstance must however be alleged in the information because it is also in the nature of a qualifying circumstance which increases the range of the penalty to include death. In Criminal Case No. 8900, while complainant Lenny testified that accusedappellant raped her after threatening her with a knife, the "use of a deadly weapon" in the commission of the crime was not alleged in the information. Therefore, even if the same was prove, it cannot be appreciated as a qualifying circumstance. The same can only be treated as generic aggravating circumstance which, in this case, cannot affect the penalty to be impose, i.e., reclusion perpetua. Accordingly, the accused-appellant should be sentenced to the penalty of reclusion perpetua. Accordingly, the accused-appellant should be sentenced to the penalty of reclusion perpetua for each of the four counts of rape. (PP -vs- FELIXBERTO FRAGA Y BAYLON, G.R. Nos. 134130-33, April 12, 2000) EXAMINATIONS OF ALL SPECIMENS IN DRUG CASES NOT NECESSARY We are not persuaded by the claim of accused-appellants that in order for them to be convicted of selling 2,800 grams of marijuana, the 80

whole specimen must be tested considering that Republic Act 7659 imposes a penalty dependent on the amount or the quantity of drugs seized or taken. This Court has ruled that a sample from one of the packages is logically presumed to be representative of the entire contents of the package unless proven otherwise by accused-appellant. (PP -vs- DIOLO BARITA Y SACPA, ET AL., G.R. No. 123541, Feb. 8, 2000) MEDICAL EXAMINATION NOT REQUIRED IN RAPE CASES This Court has also ruled that a medical examination is not indispensable to the prosecution of rape as long as the evidence on hand convinces the court that a conviction of rape is proper. WHEN CARNAL KNOWLEDGE IS CONSUMATED It is worth mentioning that in rape cases, the prosecution is not required to establish penile penetration because even the slightest touching of the female genitalia, or mere introduction of the male organ into the labia of the pudendum constitutes carnal knowledge. (PP -vs- FERNANDO CALANG MACOSTA, alias "DODONG" G.R. No. 126954, Dec. 14, 1999) THE CHARGE OF RAPE DO NOT INCLUDE SIMPLE SEDUCTION. HENCE, IF ONE IS CHARGE WITH RAPE AND IS NT PROVEN, ACCUSED CANNOT BE HELD GUILTY OF SIMPLE SEDUCTION. Even as the prosecution failed to proved the use of force, violence and intimidation by the accused-appellant, we cannot convict the accusedappellant of the crime of simple seduction without offense to the constitutional rights of the accused-appellant to due process and to be informed the accusation against him. The charge of rape does not include simple seduction. (PP -vs LOLITO MORENO Y LANCION alias "LOLOY" G.R. No. 115191, Dec. 21, 1999)

WHAT ARE THE ELEMENTS OF RAPE? The elements of rape are: (1) that the offender had carnal knowledge of a woman; (2) that such act is accomplished by using force or intimidation; or when the woman is deprived of reason or otherwise unconscious; or when the woman is under twelve years of age or is demented. MEANING OF TAKING ADVANTAGE OF SUPERIOR STRENGTH IN RAPE CASES Taking advantage of superior strength means to purposely use excessive force out of proportion to the means available to the person attacked. It is abuse of superior numbers or employment of means to weaken the defense. This circumstance is always considered whenever there is notorious inequality of forces between the victim and the aggressor, assuming a situation of superiority notoriously advantageous for the aggressor deliberately chosen by him in the commission of the crime. To properly appreciate it, it is necessary to evaluate not only the physical

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condition of the parties and the arms or objects employed but the incidents in the total development of the case as well. Moreover, like the crime of parricide by a husband on his wife, abuse of superior strength Is inherent in rape. It is generally accepted that under normal circumstances a man who commits rape on a woman is physically stronger than the latter. (PP -vs- EDGARDO DE LEON Y SANTOS, G.R. No. 128436, Dec. 10, 1999) WHEN TESTIMONY OF VICTIM IS OVERLY GENERALIZED IN CRIME OF RAPE Each and every charge of rape is a separate and distinct crime so that each of the sixteen other rapes charged should be proven beyond reasonable doubt. The victim's testimony was overly generalized and lacked specific details on how each of the alleged sixteen rapes was committed. Her bare statement that she was raped so many times on certain weeks is clearly inadequate and grossly insufficient to establish the guilt of accused-appellant insofar as the other sixteen rapes charged are concerned. In People vs. Garcia, this Court succinctly observed that: xxx the indefinite testimonial evidence that complainant was raped every week is decidedly inadequate and grossly insufficient to establish the guilt of appellant therefor with the required quantum of evidence. So much of such indefinite imputations of rape, which are uncorroborated by any other evidence fall within this category. (PP -vs- EDMUNDO DE LEON Y JESUS, G.R. No 130985, Dec. 3, 1999 CONCURRENCE OF MINORITY OF VICTIM AND RELATIONSHIPS IN RAPE MUST BE ALLEGED SO THAT DEATH PENALTY MAYBE IMPOSED The concurrence of the minority of the victim and her relationship to the offender should be specifically alleged in the information conformably with the accused's right to be informed of the accusation against him. In this case, although the minority of Poblica and her relationship with appellant were established by the prosecution beyond doubt, the death penalty cannot be imposed because these qualifying circumstances were not specified in the information. It would be a denial of the right of the appellant to be informed of the charges against him and consequently, a denial of due process if he is charged with simple rape and convicted of its qualified form punishable by death although the attendant circumstances qualifying the offense and resulting in capital punishment were not set forth in the indictment on which he was arraigned. (PP -vs- CHARITO ISUG MAGBANUA, G.R. No. 128888, Dec. 3, 1999)

QUALIFYING CIRCUMSTANCE IN RAPE CASES MUST BE ALLEGED IN ORDER THAT DEATH PENALTY MAYBE IMPOSED This Court has ruled in a long line of cases that the circumstance under the amendatory provisions of Section 11 of Republic Act 7659, the attendance of any of which mandates the single indivisible penalty of death are in the nature of qualifying circumstances which cannot be proved as such unless alleged with particularity in the information unlike ordinary aggravating circumstances which affect only the period of the penalty and 82

which may be proven even if not alleged in the information. It would be a denial of the right of the accused to be informed of the charge against him and consequently, a denial of due process, if he is charged with simple rape and will be convicted of its qualified form punishable by death although the attendant circumstance qualifying the offense and resulting in capital punishment was not alleged in the indictment under which he was arraigned. Procedurally, then, while the minority of Renelyn and her relationship to the accused-appellant were established during the trial, the accused-appellant can only be convicted of simple rape because he cannot be punished for a graver offense that that with which he was charged. Accordingly, the imposable penalty is reclusion perpetua. (PP -vsEDWIN R. DECENA, G.R. No. 131843, May 31, 2000)

IMPORTANT CONSIDERATION IN RAPE Neither is the absence of spermatozoa in Delia's genitalia fatal to the prosecution's case. The presence or absence of spermatozoa is immaterial in a prosecution for rape. The important consideration in rape cases is not the emission of semen but the unlawful penetration of the female genitalia by the male organ. (PP -vs- RODOLFO BATO alias 'RUDY BATO," G.R. No. 134939, Feb. 16, 2000)

WHEN RAPE IS NOT COMMITTED AND SWEETHEART THEORY GIVEN CREDENCE First. Private complainant never objected or showed any resistance when accused-appellant allegedly dragged her forcibly across the pedestrian overpass and brought her to an undisclosed place at Quiapo. Although he was holding her wrist tightly, she could have easily extricated herself form him on several occasions: (a) while they were inside the bus bound for Quiapo; (b) when they alighted form the bus and roamed the sidestreets of Quiapo; and especially so, (c) when they entered the hotel and finally the room where the alleged rape took place. Accused-appellant was unarmed and his tight grip could not have prevented private complainant from at least shouting for help. Her demeanor was simply inconsistent with that of the ordinary Filipina whose instinct dictates that the summon every ounce of her strength and courage to thwart any attempt to besmirch her honor and blemish her purity. True, women react differently in similar situations, but it is too unnatural for an intended rape victim, as in this case, not to make even feeble attempt to free herself despite a myriad of opportunities to do so. Second. The deportment of the private complainant after the alleged rape accentuates the dubiety of her testimony. After the alleged rape, she did not leave immediately but even refused to be separated from her supposed defiler despite the prodding of the latter. Worse, she went with him to the house of his sister and there they slept together. Indeed this attitude runs counter to logic and common sense. Surely private complainant would not risk a second molestation and undergo a reprise of the harrowing experience. To compound matters, it took her four (4) days to inform her parents about this agonizing episode in her life. Truly, her insouciance is very disturbing, to say the least.

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Finally. The prosecution failed to substantiated any of its allegations. Instead, it opted to stand or fall on the uncorroborated and implausible testimony of the private complainant. It is elementary in our rules of evidence that a party must prove the affirmative of his allegations. (PP -vs- TOMAS CLAUDIO Y MENIJIE, G.R. No. 133694, Feb. 29, 2000) WHEN TWO AFFIDAVITS ARE EXECUTED BY THE COMPLAINANT IN A RAPE CASE, ONE FOR ATTEMPTED RAPE AND ANOTHER FOR CONSUMMATED RAPE AND ARE INCONSISTENT WITH EACH OTHER, CONVICTION CANNOT BE HAD It is true that affidavits are generally subordinated in importance to open court declarations. The general rule is that variance between an extrajudicial sworn statement of the complainant and here testimony in court does not impair the complainant's credibility when the said variance does not alter the essential fact that the complainant was raped. Variance as to the time and date of the rape, the number of times it was committed or the garments which the accused or the complainant wore at the time of the incident do not generally diminish the complainant's credibility. However, the serious discrepancy between the two sworn statements executed a day apart by the complainant in this case, bearing on a material fact, is very substantial because it pertains to the essential nature of the offense, i.e., whether the offense was consummated or merely attempted. In People vs. Ablaneda, wherein a housewife executed a sworn statement for attempted rape and later changed the accusation to consummated rape without a rational explanation, this Court held that the general rule does not apply when the complainant completely changed the nature of her accusation. The contradiction does not concern a trivial or inconsequential detail but involves the essential fact of the consummation of the rape. (PP -vsALBERT ERNEST WILSON, G.R. No. 135915, Dec. 21, 1999) NATURE OF INCESTUOUS RAPE Incestuous rape of a daughter by a father has heretofore been bitterly and vehemently denounced by this Court as more than just a shameful and shameless crime. Rape in itself is a nauseating crime that deserves the condemnation of all decent persons who recognize that a woman's cherished chastity is hers alone to surrender at her own free will, and whoever violates this norm descends to the level of the odious beast. But the act becomes doubly repulsive where the outrage is perpetrated on one's own flesh and blood for the culprit is further reduced to a level lower than the lowly animal and forfeits all respect otherwise due him as a human. (PP -vsMELANDRO NICOLAS Y FAVELLA, G.R. Nos. 125125-27, Feb. 4, 2000) LOVE RELATIONSHIP DO NOT RULE OUT RAPE Even assuming ex gratia argumenti that accused-appellant and private complainant were indeed sweethearts as he claims, this fact alone will not extricate him from his predicament. The mere assertion of a "love relationship" would not necessarily rule out the use of force to consummate the crime. It must be stressed that in rape case, the gravamen of the offense is sexual intercourse with a woman against her will or without her consent. Thus, granting arguendo that the accused and the victim were really lovers this Court has reiterated time and again that "A sweetheart cannot be forced 84

to have sex against her will. Definitely, a man cannot demand sexual gratification from a fiancée, worse, employ violence upon her on the pretext of love. Love is not a license for lust." (PP -vs- DANTE CEPEDA Y SAPOTALO, G.R. No. 124832, Feb. 1, 2000) PLACES NOTORIOUS FOR HOLD-UPS DONE AT NIGHT - IS CONSIDERED AGGRAVATING AS NIGHT TIME Considering that the place where the crime took place was "notorious for hold-ups done at night, precisely to maximize the advantage of darkness," we cannot but agree with the trial court that nighttime was purposely sought by accused-appellants "for the more successful consummation may be perpetrated unmolested or so that they could escape more thoroughly." (PP -vs- FELIMON ALIPAYO Y TEJADA, ET AL., G.R. No. 122979, Feb. 2, 2000) RAPE MAY BE COMMITTED IN ALMOST ALL PLACES Appellant considers it quite improbable for rape to be committed at a place within a well-lighted and fairly well-populated neighborhood. This argument does not hold water. Rape can be commi9tted even in places where people congregate, in parks, along the roadside, within school premises, inside a house where there are other occupants, and even in the same room in the presence of other members of the family. |An overpowering wicked urge has been shown not to be deterred by circumstances of time or place. DEATH PENALTY CANNOT BE IMPOSED WHEN INFORMATION FAILED TO INDICATE THE AGE OF THE VICTIM AND HER CORRECT RELATIONSHIP WITH THE ACCUSED The penalty of death cannot be properly imposed since the indictment has failed to indicate the age of the victim and her correct relationship with appellant, concurrent qualifying circumstances, essential in the imposition of that penalty. Furthermore, appellant is not a "parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim." The latter's grandmother, Remedios Lustre, herself acknowledges that appellant has just for a time been her common-law husband. (PP -vsFEDERICO LUSTRE Y ENCINAS, G.R. No. 134562, April 6, 2000)

COMPENSATORY DAMAGES IN CASES OF QUALIFIED RAPE With regard to the award of compensatory damages, we have rule in People vs. Victor, which was later reaffirmed in People vs. Prades, that "if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity of the victim shall be in the increased amount of not less than P75,000.00." (PP -vs- ANTONIO MAGAT Y LONDONIO, G.R. No. 130026, May 31, 2000)

NATURE OF INTIMIDATION IN CASE OF RAPE

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In People vs. Luzorata, the Court held that intimidation was addressed to the mind of the victim and therefore subjective, and its presence could not be tested by any hard-and-fast rule but must be viewed in light of the victim's perception and judgment at the time of the crime. Thus, when a rape victim becomes paralyzed with fear, she cannot be expected to think and act coherently, her failure to immediately take advantage of the early opportunity to escape does not automatically vitiate the credibility of her account. "Complainant cannot be faulted for not taking any action inasmuch as different people react differently to a given type of situation, there being no standard form of human behavioral response when one is confronted with a strange, startling or frightful experience." (PP -vs- VICENTE BALORA Y DELANTAR, G.R. No. 124976, May 31, 2000)

EACH AND EVERY RAPE ALLEGED MUST BE PROVEN Each and every charge of rape is a separate and distinct crime so that each of the sixteen other rapes charged should be proven beyond reasonable doubt. The victim's testimony was overly generalized and lacked specific details on how each of the alleged sixteen rapes was committed. Her bare statement that she was raped so many times on certain weeks is clearly inadequate and grossly insufficient to establish the guilt of accusedappellant insofar as the other sixteen rapes charged are concerned. In People vs. Garcia this Court succinctly observed that: xxx the indefinite testimonial evidence that complainant was raped every week is decidedly inadequate and grossly insufficient to establish the guilt of appellant therefor with the required quantum of evidence. So much of such indefinite imputations of rape, which are uncorroborated by any other evidence fall within this category. (PP -vs- EDMUNDO DE LEON Y JESUS, G.R. No. 130985, Dec. 3, 1999) AT THE START THERE MUST BE RAPE, BUT SUBSEQUENT EVENTS MAY BECOME A FACTOR THAT THE REALTIONSHIP, ALTHOUGH INCESTOUS, CONVICTION FOR RAPE CANNOT BE HAD "Complainant could have been raped the first time accused-appelant had carnal knowledge of her, when she was 13 years old. This however, is not a prosecution for such rape. When she complained of having been raped in this case, she was already 30 or 31 years old, 17 or 18 years after she had been allegedly ravished for the first time by her father, the herein accusedappelant. During the said period of 17 or 18 years, neither complainant nor her parents denounced accused-appellant despite the fact that he continued to have sexual relation allegedly without the consent of complainant. During this period, four children were born to complainant and accusedappellant. Complainant and accused-appellant practically cohabited, choosing the baptismal sponsors for their children, and even inviting friends and relatives to the feasts. The relationship was known to neighbors. Thus, their relationship might be incestuous, but it was not by reason of force or intimidation. For their part, while in the beginning complainant's mother and sisters may have disapproved of the relationship, in the end, it would appear that subsequently they just turned a blind eye on the whole affair. Given these facts, we cannot say that on September 19, 1995 when accused-

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appellant had sexual intercourse with complainant, he committed rape. (People v. Villalobos, G.R. 134294, 05/21/2001) THE DELAY AND INITIAL RELUCTANCE OF A RAPE VICTIM TO MAKE PUBLIC THE ASSAULT ON HER VIRTUE IS NEITHER UNKNOWN OR UNCOMMON. AS HELD IN LTHE CASE OF PEOPLE VS. MALAGAR "Vacillation in the filing of complaint by rape victim is not an uncommon phenomenon. This crime is normally accompanied by the rapist's threat on the victim's life, and the fear can last for quit a while. There is also the natural reluctance of a woman to admit her sullied chastity, accepting thereby all the stigma it leaves, and to then expose herself to the morbid curiosity of the public whom she may likely perceived rightly or wrongly, to be more interested in the prurient details of the ravishment than in her vindication and the punishment of the rapist. In People vs. Coloma (222 SCRA 255) we have even considered an 8-year delay in reporting the long history of rape by the victim's father as understandable and so not enough to render incredible the complaint of a 13-year old daughter. (PP -vs- CONRADO CABANA @ RANDY, G.R. No. 127124, May 9, 2000)

WHEN THERE IS A SEPARATE CRIME OF RAPE AND ROBBERY IS COMMITTED As related by Private Complainant Amy de Guzman, accused-appellant suddenly jumped over the counter, strangled her, poked a knife at the left side of her neck, pulled her towards the kitchen where he forced her to undress, and gained carnal knowledge of her against her will and consent. Thereafter, he ordered her to proceed upstairs to get some clothes, so he could bring her out, saying he was not leaving her alive. At this point, appellant conceived the idea of robbery because, before they could reach the upper floor, he suddenly pulled Amy down and started mauling her until she lost consciousness; then he freely ransacked the place. Leaving Amy for dead after repeatedly banging her head, first on the wall, then on the toilet bowl, he took her bracelet, ring and wristwatch. He then proceeded upstairs where he took as well the jewelry box containing other valuables belonging to his victim's employer. Under these circumstance, appellant cannot be convicted of the special complex crime of robbery with rape. However, since it was clearly proven beyond reasonable doubt that he raped Amy de Guzman and thereafter robbed her and Ana Marinay of valuables totaling P16,000.00, he committed two separate offenses -rape with the use of deadly weapon and simple robbery with force and intimidation against persons.

CASES WHEREIN THE SCANDAL RESULTING FROM RELATIONS OF COMPLAINANT AND ACCUSED IMPELS THE COMPLAINANT OR HER RELATIVES TO FILE COMPLAINT OF RAPE AGAINST THE ACCUSED BUT DID NOT PROSPER Thus in People vs. Lamarroza, a case involving an eighteen-year old woman "intellectually weak and gullible," the Court found that the alleged 87

victim's family was "obviously scandalized and embarrassed by (the victim) Elena's 'unexplained' pregnancy," prompting them to cry "rape." The Court acquitted the accused. In People vs. Domogoy, private complainant was seen having sexual intercourse in the school premises with appellant therein by the latter's coaccused. "It is thus not farfetched," the Court held, "for complainant to have instituted the complainant for rape against the three to avoid being bruited around as a woman of loose morals." Similarly, in People vs. Castillon, the Court considered the complainant's agreement to engage in pre-marital sexual intercourse "already a disgrace to her family, what more of her acquiescence to have sexual intercourse on a stage near the vicinity where the JS program was being held and prying eyes and ears abound." In People vs. Bawar, the complainant was caught in flagrante by her sister-in-law engaging in sexual intercourse with the accused, a neighbor. The Court gathered from the complainant's testimony that "she filed the case because she thought it would be better to cry 'rape' and bring suit to salvage and redeem her honor, rather than have reputation sullied in the community by being bruited around and stigmatized as an adulterous woman." People vs. Godoy also involved an adulterous relationship between the accused, who was married, and his seventeen-year old student. In acquitting the accused, the Court held: The Court takes judicial cognizance of the fact that in rural areas in the Philippines, young ladies are strictly required to act with circumspection and prudence. Great caution is observed so that their reputations shall remain untainted. Any breath of scandal which brings dishonor to their character humiliates their entire families. It could precisely be that complainant's mother wanted to save face in the community where everybody knows everyone else, and in an effort to conceal her daughter's indiscretion and escape the wagging tongues of their small rural community, she had to weave the scenario of this rape drama. Here, the elopement of a thirteen-year old with her nineteen-year old second cousin no doubt caused quite a tempest in the otherwise serene community of Vintar, Ilocos Norte. That complainant's parents were against their relationship, as evidenced in one of her letters, makes it more likely that the charges of rape were instigated to salvage the complainant's and her family's honor. While the "sweetheart theory" does not often gain favor with this Court, such is not always the case if the hard fact is that the accused and the supposed victim are, in truth, intimately related except that, as is usual in most cases, either the relationship is illicit or the victim's parents are against it. It is not improbable that in some instances, when the relationship is uncovered, the alleged victim or her parents for that matter would take the risk of instituting a criminal action in the hope that the court would take the cudgels for them than for the woman to admit her own acts of indiscretion. (PP -vs- ERWIN AGRESOR, G.R. Nos. 119837-39, Dec. 9, 1999)

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JUDGES SHOULD NOT BE OVERLY PROTECTIVE OF EVERY WOMAN IN RAPE CASES. THEY MUST LOOK AT THE CHARGE WITH EXTREME CAUTION AND CIRCUSMPECTION Rape is a very emotional word, and the natural human reactions to it are categorical: sympathy for the victim and admiration for her in publicly seeking retribution for her outrageous misfortune, and condemnation of the rapist. However, being interpreters of the law and dispensers of justice, judges must look at a rape charge without those proclivities and deal and with it with extreme caution and circumspection. Judges must free themselves of the natural tendency to be overprotective of every woman decrying her having been sexually abused and demanding punishment for the abuser. While they ought to be cognizant of the anguish and humiliation the rape victim goes through as she demands justice, judges should equally bear in mind that their responsibility is to render justice based on the law. (PP -vs- EDWIN LADRILLO, G.R. No. 124342, Dec. 8, 1999)

SEXUAL HARASSMENT LAW (RA 7877) WORK, EDUCATION OR TRAINING-RELATED SEXUAL HARASSMENT DEFINED. Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act.

WHEN SEXUAL HARASSMENT IS COMMITTED: Work, Education or Training-related Sexual Harassment Defined Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. In work-related or employment environment: (1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the 89

refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; (2) The above acts would impair the employee's rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee. In an education or training environment: (1) Against one who is under the care, custody or supervision of the offender; (2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender; (3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships or the payment of a stipend, allowance or other benefits, privileges, or considerations; or (4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice. Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act.

CHILD AND YOUTH WELFARE CODE ( PD 603 with Amendments)

RELIGIOUS INSTRUCTION The religious education of children in all public and private schools is a legitimate concern of the Church to which the students belong. All churches may offer religious instruction in public and private elementary and secondary schools, subject to the requirements of the Constitution and existing laws. TERMINATION OF RIGHTS OF PARENTS When a child shall have been committed to the Department of Social Welfare or any duly licensed child placement agency or individual pursuant to an order of the court, his parents or guardian shall thereafter exercise no authority over him except upon such conditions as the court may impose. VIOLATION OF PD 603 BY A CHILD Prohibited Acts:

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It shall be unlawful for any child to leave the person or institution to which he has been judicially or voluntarily committed or the person under whose custody he has been placed in accordance with the next preceding article, or for any person to induce him to leave such person or institution, except in case of grave physical or moral danger, actual or imminent, to the child. Any violation of this article shall be punishable by an imprisonment of not more than one year or by a fine of not more than two thousand pesos, or both such fine and imprisonment at the discretion of the court: Provided, That if the violation is committed by a foreigner, he shall also be subject to deportation. CARE OF YOUTHFUL OFFENDER HELD FOR EXAMINATION OR TRIAL A youthful offender held for physical and mental examination or trial or pending appeal, if unable to furnish bail, shall from the time of his arrest be committed to the care of the Department of Social Welfare or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required: Provided, That in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees. The court may, in its discretion, upon recommendation of the Department of Social Welfare or other agency or agencies authorized by the Court, release a youthful offender on recognizance, to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required. SUSPENSION OF SENTENCE AND COMMITMENT OF YOUTHFUL OFFENDER If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him the court shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court shall suspend all further proceedings and shall commit such minor to the custody or care of the Department of Social Welfare, or to any training institution operated by the government, or duly licensed agencies or any other responsible person, until he shall have reached twenty-one years of age or, for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Welfare or the agency or responsible individual under whose care he has been committed. The youthful offender shall be subject to visitation and supervision by a representative of the Department of Social Welfare or any duly licensed agency or such other officer as the Court may designate subject to such conditions as it may prescribe.

PD 1210 ARTICLE 191 OF PD 603 IS HEREBY AMENDED TO READ AS FOLLOWS

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"Article 101. Care of Youthful Offender Held for Examination or Trial. A youthful offender held for physical and mental examination or trial or pending appeal, if unable to furnish bail, shall from the time of his arrest be committed to the care of the Dept. of Social Services and Development or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required: Provided, that in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees. The court may, in its discretion upon recommendation of the Department of Social Services & Development or other agency or agencies authorized by the Court, release a youthful offender on recognizance, to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required. However, in the case of those whose cases fall under the exclusive jurisdiction of the Military Tribunals, they may be committed at any military detention or rehabilitation center.

PD 1210 ARTICLE 192 OF PD 603 AS AMENDED IS FURTHER AMENDED TO READ AS FOLLOWS: "Art. 192. Suspension of sentence and Commitment of Youthful Offender. - If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him, the court, shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court upon application of the youthful offender and if it finds that the best interest of the public as well as that of the offender will be served thereby, may suspend all further proceedings and commit such minor to the custody or care of the Department of Social Services and Development or to any training institution operated by the government or any other responsible person until he shall have reached twenty one years of age, or for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Services and Development or the government training institution or responsible person under whose care he has been committed. Upon receipt of the application of the youthful offender for suspension of his sentence, the court may require the Department of Social Services and Development to prepare and submit to the court a social case study report over the offender and his family. The Youthful offender shall be subject to visitation and supervision by a representative of the Department of Social Services & Development or government training institution as the court may designate subject to such conditions as it may prescribe. The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension of sentence under its provisions or to one who is convicted of an offense punishable by death or life imprisonment or to one who is convicted for an offense by the Military Tribunals.

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APPEAL The order of the court denying an application for suspension of sentence under the provisions of Article 192 above shall not be appealable." RETURN OF THE YOUTHFUL OFFENDER TO THE COURT Whenever the youthful offender has been found incorrigible or has wilfully failed to comply with the conditions of his rehabilitation programs, or should his continued stay in the training institution be inadvisable, he shall be returned to the committing court for the pronouncement of judgment. When the youthful offender has reached the age of twenty-one while in commitment, the court shall determine whether to dismiss the case in accordance with the extent preceding article or to pronounce the judgment conviction. In the latter case, the convicted offender may apply for probation under the provisions of Presidential Decree Numbered Nine Hundred and Sixty-Eight. In any case covered by this article, the youthful offender shall be credited in the service of his sentence with the full time spent in actual commitment and detention effected under the provisions of this Chapter."

RA 7610

CHILD ABUSE LAW CHILD PROSTITUTION AND OTHER SEXUAL ABUSE Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute; (2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (3) Taking advantage of influence or relationship to procure a child as prostitute; (4) Threatening or using violence towards a child to engage him as a prostitute; or (5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, 93

the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall reclusion temporal in its medium period; and (c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.

ATTEMPT TO COMMIT CHILD PROSTITUTION There is an attempt to commit child prostitution under Section 5, paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse. There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. A penalty lower by two (2) degrees than that prescribed for the consummated felony under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act, or, in the proper case, under the Revised Penal Code. CHILD TRAFFICKING Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter, shall suffer the penalty of reclusion temporal to reclusion perpetua. The penalty shall be imposed in its maximum period when the victim under twelve (12) years of age.

ATTEMPT TO COMMIT CHILD TRAFFICKING There is an attempt to commit child trafficking under Section 7 of this Act: (a) When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the Department of Social Welfare and Development or written permit or justification from the child's parents or legal guardian;

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(b) When a person, agency, establishment or child-caring institution recruits women or couples to bear a children for the purpose of child trafficking; or (c) When doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking; (d) When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, day-care centers, or other child-during institutions who can be offered for the purpose of child trafficking. A penalty lower two (2) degrees than that prescribed for the consummated felony under Section 7 hereof shall be imposed upon the principals of the attempt to commit child trafficking under this Act.

OBSCENE PUBLICATIONS AND INDECENT SHOWS Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period. If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period. Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play, scene, act, movie or show or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period. OTHER ACTS OF NEGLECT, ABUSE, CRUELTY OR EXPLOITATION AND OTHER CONDITIONS PREJUDICIAL TO THE CHILD’S DEVELOPMENT (a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period. (b) Any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places shall suffer the penalty of prision mayor in its maximum period and a fine of not less than Fifty thousand pesos (P50,000): Provided, 95

That this provision shall not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty. (c) Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to keep or have in his company a minor as provided in the preceding paragraph shall suffer the penalty of prision mayor in its medium period and a fine of not less than Forty thousand pesos (P40,000); Provided, however, That should the perpetrator be an ascendant, stepparent or guardian of the minor, the penalty to be imposed shall be prision mayor in its maximum period, a fine of not less than Fifty thousand pesos (P50,000), and the loss of parental authority over the minor. (d) Any person, owner, manager or one entrusted with the operation of may public or private place of accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any person to take along with him to such place or places any minor herein described shall be imposed a penalty of prision mayor in its medium period and a fine of not less than Fifty thousand pesos (P50,000), and the loss of the license to operate such a place or establishment. (e) Any person who shall use, coerce, force or intimidate a street child or any other child to : (1) Beg or use begging as a means of living; (2) Act as conduit or middlemen in drug trafficking or pushing; or (3) Conduct any illegal activities, shall suffer the penalty of prision correccional in its medium period to reclusion perpetua. For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. The penalty for the commission of acts punishable under Article 337, 339, 340 and 341 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of qualified seduction, acts of lasciviousness with the consent of the offended party, corruption of minors, and white slave trade, respectively, shall be one (1) degree higher than that imposed by law when the victim is under twelve (12) years age. The victim of the acts committed under this section shall be entrusted to the care of the department of Social Welfare and Development. CHILDREN AS ZONES OF PEACE Children are hereby declared as Zones of Peace. It shall be the responsibility of the State and all other sectors concerned to resolve armed conflicts in order to promote the goal of children as zones of peace. To attain this objective, the following policies shall be observed. (a) Children shall not be the object of attack and shall be entitled to special respect. They shall be protected from any form of threat, assault, torture or other cruel, inhumane or degrading treatment; 96

(b) Children shall not be recruited to become members of the Armed Forces of the Philippines of its civilian units or other armed groups, nor be allowed to take part in the fighting, or used as guides, couriers, or spies; (c) Delivery of basic social services such as education, primary health and emergency relief services shall be kept unhampered; (d) The safety and protection of those who provide services including those involved in fact-finding missions from both government and non-government institutions shall be ensured. They shall not be subjected to undue harassment in the performance of their work; (e) Public infrastructure such as schools, hospitals and rural health units shall not be utilized for military purposes such as command posts, barracks, detachments, and supply depots; and (f) All appropriate steps shall be taken to facilitate the reunion of families temporarily separated due to armed conflict.

RIGHTS OF CHILDREN ARRESTED FOR REASONS RELATED TO ARMED CONFLICT Any child who has been arrested for reasons related to armed conflict, either as combatant, courier, guide or spy is entitled to the following units; (a) Separate detention from adults except where families are accommodated as family units; (b) Immediate free legal assistance; (c) Immediate notice of such arrest to the parents or guardians of the child; and (d) Release of the child on recognizance within twenty-four (24) hours to the custody of the Department of Social Welfare and Development or any responsible member of the community as determined by the court. If after hearing the evidence in the proper proceedings the court should find that the aforesaid child committed the acts charged against him, the court shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court shall suspend all further proceedings and shall commit such child to the custody or care of the Department of Social Welfare and Development or to any training institution operated by the Government, or duly-licensed agencies or any other responsible person, until he has had reached eighteen (18) years of age or, for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Welfare and Development or the agency or responsible individual under whose care he has been committed. The aforesaid child shall subject to visitation and supervision Development or any duly-licensed agency such other officer as the court may designate subject to such conditions as it may prescribe. 97

The aforesaid child whose sentence is suspended can appeal from the order of the court in the same manner as appeals in criminal cases. CONFIDENTIALITY At the instance of the offended party, his name may be withheld from the public until the court acquires jurisdiction over the case. It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio broadcasting, producer and director of the film in case of the movie industry, to cause undue and sensationalized publicity of any case of violation of this Act which results in the moral degradation and suffering of the offended party. PEDOPHILIA IS NOT INSANITY When accused-appellant was committed to the National Center for Mental Health, he was not diagnosed as insane but was suffering from pedophilia. Thus, there is no doubt in our mind that he was sane during his two-year confinement in the center, pedophilia being dissimilar to insanity. RA 7658 EMPLOYMENT OF CHILDREN Children below fifteen (15) years of age shall not be employed except: 1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer's family are employed: Provided, however, That his employment neither endangers his life, safety, health and morals, nor impairs his normal development; Provided, further, That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; or 2) Where a child's employment or participation in public entertainment or information through cinema, theater, radio or television is essential: Provided, The employment contract is concluded by the child's parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: and Provided, That the following requirements in all instances are strictly complied with: (a) The employer shall ensure the protection, health, safety, morals and normal development of the child; (b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and (c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the requirements.

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In the above exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the child. The Department of Labor and Employment shall promulgate rules and regulations necessary for the effective implementation of this Section." IF MINOR DO NOT APPLY FOR SUSPENSION OF SENTENCE IT IS DEEMED WAIVED. THE COURT CANNOT MOTU PROPIO GIVE HIM THE BENEFITS OF ART. 192 The record, unfortunately for accused-appellant Buena, does not show that he filed with the trial court an application for suspension of sentence so as to put into operation the benevolent provisions of Presidential Decree No. 603. The Court, therefore, has no other choice but to deny him this privilege. DISCHARGE; REPORT AND RECOMMENDATION OF THE DEPARTMENT OF SOCIAL WELFARE, SUBJECT TO JUDICIAL REVIEW It is not the responsibility of this Court to order the release of accused Ricky Galit without the benefit of a review of the recommendation of the Department of Social Welfare by the trial court. Art 196 of PD 603 provides: "Art. 196. Dismissal of the case. — If it is shown to the satisfaction of the court that the youthful offender whose sentence has been suspended, has behaved properly and has shown his capability to be a useful member of the community, even before reaching the age of majority, upon recommendation of the Department of Social Welfare, it shall dismiss the case and order his final discharge." It is therefore clear that in cases where the DSWD recommends the discharge of a youthful offender, it is the trial court before whom the report and recommendation is subject to judicial review. Recommendation alone is not sufficient to warrant the release of a youthful offender. In reviewing the DSWD's recommendation, the trial judge must not base his judgment on mere conclusions but should seek out concrete, material and relevant facts to confirm that the youthful offender has indeed been reformed and is ready to re-enter society as a productive and law-abiding citizen. Caution, however, is given to the trial court. To begin with, the youthful offender is not to be tried anew for the same act for which he was charged. The inquiry is not a criminal prosecution but is rather limited to the determination of the offender's proper education and rehabilitation during his commitment in the Training Center and his moral and social fitness to re-join the community. (Pp. V. Galit; GR 97432, 3/1/94) SUSPENSION OF SENTENCE NOT APPLICABLE IF PENALTY IS RECLUSION PERPETUA, LIFE IMPRISONMENT OR DEATH As aforesaid, however, accused Ricky Galit and Raquel Tagalog did not appeal from the judgment of the trial court. Neither did the People question the suspension of their sentence. The benefits of suspension of 99

sentence are not available where the youthful offender has been convicted of an offense punishable by life imprisonment or death. The last paragraph of section 2 of Presidential Decree No. 1210, which amended certain provisions of P.D. 603, provides: "The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension of sentence under its provisions or to one who is convicted of an offense punishable by death or life imprisonment or to one who is convicted for an offense by the Military Tribunals." (Par. 4, Sec. 2, P.D. No. 1179, as amended by P.D. No. 1210; emphasis supplied) (Pp. v. Galit, supra.) YOUTHFUL OFFENDER, TO BE CRIMINALLY LIABLE, ACCUSED, A 13 YEAR OLD, MUST ACT WITH DISCERNMENT There is a further obstacle that stands in the way of Estorque's conviction. While it has been proven that he was only thirteen years old at the time of the incident, there are no allegations in both informations that Estorque had acted with discernment. And even if we are to consider the allegations that he had committed the imputed acts "with intent to kill" as sufficient compliance — as we have in the past — he would still not be held liable as no proof was offered during trial that he had so acted with discernment. Accordingly, even if he was indeed a co-conspirator or an accessory, he would still be exempt from criminal liability. (Pp. V. Cordova; GR 83373-74, 7/5/93) EVERY ACCUSED IS PRESUMED TO BE SANE AT THE TIME OF COMMISSION OF THE CRIME The law presumes all acts to be voluntary, and that it is improper to presume that acts were done unconsciously. The quantum of evidence required to overthrow the presumption of sanity is proof beyond reasonable doubt. Since insanity is in the nature of a confession and avoidance, it must be proven beyond reasonable doubt. Moreover, an accused is presumed to have been sane at the time of the commission of the crime in the absence of positive evidence to show that he had lost his reason or was demented prior to or during the perpetration of the crime. (Pp. v. Cordova, supra.)

FAILURE OF DEFENSE TO ASK FOR SUSPENSION OF ARRAIGNMENT NEGATES INSANITY Appellant Eduardo Cordova did not even ask for the suspension of his arraignment on the ground that he was suffering from insanity. Paragraph (a), Section 12, Rule 116 of the Revised Rules of Court provides that the arraignment of an accused who 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, shall be

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suspended. In the case at bar, Eduardo Cordova even took the witness stand to testify. (Pp. V. Cordova, supra.)

CHILD & YOUTH WELFARE CODE, NOT APPLICABLE TO DEATH OR RECLUSION PERPETUA SENTENCE The Child and Youth Welfare Code does not apply to those convicted of offenses punishable by death, or reclusion perpetua (Presidential Decree No. 603, as amended by Presidential Decree N. 603, as amended by Presidential Decree Nos. 1179 and 1210). The fact is Bolioc is now twenty-three years old. He is not entitled to a suspended sentence. He is entitled to a two-degree reduction of the penalty (Art. 68, RPC). (Pp. V. Mendez; GR L-48131; 5/30/83)

SUSPENSION OF SENTENCE; CANNOT BE AVAILED OF WHERE OFFENDER IS ALREADY OVER 21 YEARS OLD AT THE TIME OF PROMULGATION OF HIS SENTENCE It is true that Venancio Villanueva was a youthful offender as defined by Art. 189 because he was under 21 years of age when he committed the offense on February 22, 1974. However, when he was sentenced on July 30, 1975, he was over 21 years old and under the terms of Art. 192 (as well as Art. 197) he was no longer entitled to suspension of sentence. (Villanueva v. CFI; GR L-45798, 12/15/82)

WHEN PRESIDENTIAL DECREE NO. 603 MAY BE GIVEN RETROACTIVE EFFECT Where P.D. 603 is more favorable to the accused in that the sentence against them may he suspended, said Decree may be given retroactive effect, not only with the end in view of giving force and effect to the laudable policies for which the P.D. otherwise known as the Child and Youth Welfare Code was promulgated, hut also in the light of the provisions of Article 22 of the Revised Penal Code. (People v. Garcia; GR L-45280-81, 6/11/81) PRESIDENTIAL DECREE NO. 603; ALTERNATIVE COURSES OF ACTION OF THE COURT WHEN YOUTHFUL OFFENDER IS RETURNED AFTER REACHING THE AGE OF MAJORITY The trial court has two alternative courses of action with respect to a youthful offender whose sentence it had suspended and who is returned to the court upon his reaching the age of majority. These are: (1) to dismiss the case and order the final discharge of said offender; or (2) to pronounce the judgment of conviction. In plain and simple language, it is either dismissal or sentence. (Pp. V. Garcia; supra.) 101

CIVIL LIABILITY OF YOUTHFUL OFFENDER, DEFINED The civil liability for damages referred to is apparently that obligation created by or arising from the crime, otherwise known as ex delicto the imposition of which is mandated by Articles 100, 104(3), 107 and 345(1) of the Revised Penal Code, (People vs. Peña, L-36434, December 20, 1977, 80 SCRA 589, 599) and is based upon a finding of the guilt of the accused. (Pp. V. Garcia, supra.)

REPUBLIC ACT NO. 8484 (The Access Device Regulation) An act regulating the issuance and use of access devices, prohibiting fraudulent acts committed relative thereto, providing penalties and for other purposes. The recent advances in modern technology have led to the extensive use of certain devices in commercial transactions, prompting the State to regulate the same. hence, on February 3, 1998, Congress enacted Republic Act Number 8484, otherwise known as The Access Devices Regulation Act of 1998. Termed as "access devices" by RA No. 8484, any card, plate, code, account number, electronic serial number, personal identification number, or other telecommunication service, equipment, or instrumental identifier, or other means of account access t hat can be used to obtain money, good, services or any other thing of value or to initiate transfer of funds (other than transfer originated solely by paper instrument) is now subject to regulation. The issuance and use of access devices are ought to regulate in order to protect the rights and define the liabilities of parties in commercial transactions involving them. Essentially, the law imposes duties both to the access device issuer and holder, and penalize certain acts deemed unlawful for being detrimental to either the issuer or holder, or both. The law mandates an access device issuer, or "card issuer," to disclose either in writing or orally in any application or solicitation to open a credit card account the following: 1) annual percentage rate; 2) annual and other fees; 3) and balance calculation method; 4) cash advance fee; and 5)) over the limit fee. Moreover, the computation used in order to arrive at such charges and fees required, to the extent practicable, to be explained in detail and a clear illustration of the manner by which it is made to apply is also necessary.

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Nonetheless, there are certain exceptions for the above requirement of disclosure not to apply. This is when application or solicitation is made through telephone, provided that the issuer does not impose any annual fee, and fee in connection with telephone solicitation unless the customer signifies acceptance by using the card, and that a clear disclosure of the information enumerated in the preceding paragraph is made in writing within thirty (30) after the consumer requests for the card, but in no event later than the date of the delivery of the card, and that the consumer is not obligated to accept the card or account and the consumer will not be obligated to pay any fees or charges disclosed unless the consumer accepts the card or account by using the card. Failure on the part of the issuer to fulfill the above requirements will result in the suspension or cancellation of its authority to issue credit cards, after due notice and hearing, by the Banko Sentral ng Pilipinas, the Securities and Exchange Commission and such other government agencies. In sum therefore, the above omission is made punishable if the following elements occur. One, there is an application or solicitation. Second, such application or solicitation should include the information required by law. and third, failure on the part of the issuer to disclose such information. In one case (Ermitano v. GR No. 127246, April 21, 1999), the Supreme Court had the occasion to rule on the validity of contracts involving credit cards. The credit cards holder contended that the credit card company should be blamed for the charges the same being unwarranted by the contract. As stipulated, once a lost card has been reported, purchases made thereafter should not accrue on the part of the holder. The Court said notwithstanding the fact that the contract of the parties is a contract of adhesion the same is valid. However, if the same should include terms difficult to interpret as to hide the true intent to the detriment of the holder, holding it void requires no hesitation. Thus, contracts which provide for ambiguous terms of payment, imposition of charges and fees may be held void invoking the principle of the contract of adhesion. Clearly, in this case decided in 1999, the Court was concerned about an access device issuer's vulnerability to abuse the provisions of the contract. It is quite surprising, however, that the Court did not make reference to RA No. 8484 to think that it was already in effect when the resolution was promulgated. Nonetheless, in American Express International Co., Inc. vs. IAC (GR NO. 70766, November 9, 1988) Supreme Court turned down the argument of private respondent grounded on the adhesion principle saying indeed, in a contract of adhesion the maker of the contract has all the advantages, however, the one to whom it is offered has the absolute prerogative to accept or deny the same. On the other hand, an access device holder may be penalized when he or she fraudulently applied for such device. An access device fraudulently applied for means any access device that was applied for or issued on account of the use of falsified document, false information, fictitious identities and addresses, or any form of false pretense or misrepresentation. Thus, the use, trafficking in, possession, and inducing, 103

enticing or in any manner allowing one to use access device fraudulently applied for are considered unlawful. The element of fraud is indispensable for this provision of RA 8484 to apply. It is a condition sine qua non before one may be charged with the defined offense. Thus, the law provides for presumptions of Intent to defraud on the basis of mere possession, control or custody of: a) an access device without lawful authority; b) a counterfeit access device; any device making or altering equipment; c) an access device or medium on which an access device is written not in the ordinary course of the possessor's business; or d) any genuine access device, not in the name of the possessor. A card holder who abandons or surreptitiously leaves the place of employment, business or residence stated in his application for credit card, without informing the credit card company of the place where he could actually be found, if at the time of such abandonment or surreptitious leaving, the outstanding and unpaid balance is past due for at least ninety (90) days and is more than ten thousand pesos (P10,000.00), shall be prima facie presumed to have used his credit card with intent to defraud. At first glance, the above presumptions, when applied in real cases, may suffer from constitutional infirmities. The constitution provides that a person shall not be held to answer to a criminal offense without due process of law. it may be argued that such presumptions are rebuttable ones. However, the danger lies in the shifting of the burden of proof from the prosecution to the defense. The law provides for sixteen (16) prohibited acts which refer to the production, use, possession of or trafficking in unauthorized or counterfeit access devices. It also includes acts deemed fraudulent that increase the amount involved in commercial transactions using access devices. Obtaining money or anything of value through the use of an access device with intent to defraud or gain, and fleeing thereafter. In the final analysis, the law basically seeks to address the issue of fraud in the issuance and use of access devices, especially credit cards. Fraud may be committed by the issuer by making false or vague information in the application or solicitation to open credit card accounts. The applicant or holder, on the other hand, fraudulently misrepresents himself by giving wrong identity, false profession or employment, or bloated income. Take the case for instance of Citibank v. Gatchalian (GR No. 111222, January 18, 1995) which shows how credit card applicants through false representation were able to amass in simple terms P790,000.00 from petitioner. In this case, two employees of the Asian-Pacific Broadcasting Co,. Inc. (ABCI) applied for nineteen (19( credit cards with Citibank using different names other than their real names. The Citibank approved the applications and the credit cards were delivered to them for use. However, this case involves an illegal dismissal case where a Citibank employee was found guilty of gross negligence for effecting the delivery of the credit cards. Her dismissal was affirmed in this case. 104

Insofar as access device issuers are concerned, Eermitano v. C.A., may be a case in point. The credit card holder lost his credit card which he immediately reported to the card issuer. The contract stipulated that in case of lost, the same should be reported immediately, otherwise purchases made shall be charged to the holder. In this case, despite the prompt reporting of the holder, the issuer still charged the purchases against the former. The Court in this case held the issuer in breach of the contract. The penalties provided for by RA 8484 are imprisonment and fine. Imprisonment is from six (6) years to ten (10) years and fine ranges from ten thousand pesos (10,000.00) or twice the value of the offense, whichever is higher. The penalties are increased in case the offender has a similar previous conviction, meaning if he was previously found violating RA 8484. In which case, the accused shall suffer imprisonment of not less than twelve (12) years and not more than twenty (20) years. The two other stages of felony, as defined by the Revised Penal Code is also made punishable. Thus, attempted and frustrated are meted out with the penalties of imprisonment and fine albeit only in fractions of the above penalties. R.A. 8484 may seem to favor the issuer. A credit card company may only be meted out the penalty of cancellation or suspension, which may be considered as mere administrative sanctions. In fact, it is not the courts which impose such sanctions but administrative agencies such as the Bangko Sentral and the Securities and Exchange Commission. On the other hand, a holder or mere possessor of a counterfeit fraudulently applied for access device may be convicted and be made to suffer imprisonment and fine.

Paolou Lagrimas.2002

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