SPLAWS10.JURIST by Prof. Modesto Ticman, Jr.

JURISTS BAR REVIEW CENTER NOTES AND CASES ON SELECTED

SPECIAL PENAL LAWS

Prepared by: Atty. Modesto A. Ticman, Jr. R.A. No. 4103 INDETERMINATE SENTENCE LAW Applying the ISLaw, how is the penalty for an offense imposed? 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 the said Code, and the maximum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and 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.1 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.2 The ISLaw is not applicable to the following: 1. to persons convicted of offenses punished with death penalty or life imprisonment; 2. to those convicted of treason, conspiracy or proposal to commit treason; to those convicted of misprision of treason, rebellion, sedition or espionage; 3. to those convicted of piracy; to those who are habitual delinquents; 4. to those who shall have escaped from confinement or evaded sentence; 5. to those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; and 6. to those who maximum term of imprisonment does not exceed one year.3 Section 2 of the IS Law is not applicable to persons convicted of offenses punishable by reclusion perpetua.4 The penalty of reclusion perpetua is equated as synonymous to lifeimprisonment for purposes of the Indeterminate Sentence Law, and that the latter law does not apply to persons convicted of offenses punishable with the said penalty.5 Persons sentenced to reclusion perpetua, not entitled to parole. Persons sentenced to suffer the penalty of reclusion perpetua shall not be entitled to parole in view of Republic Act (R.A.) No. 9346, Sec. 3 of which states that “[p]ersons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. Moreover, it is settled that reclusion perpetua is an indivisible penalty without a minimum or maximum period. Parole, on the other hand, is extended only to those sentenced to divisible penalties as is evident from Sec. 5 of the Indeterminate Sentence Law, which provides that it is only after “any prisoner shall have served the minimum penalty imposed on him” that the Board of Indeterminate Sentence may consider whether such prisoner may be granted parole.6 P.D. No. 968

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Sec. 1, R.A. No. 4103 People vs. Angeles, 380 SCRA 519 (2002) Sec. 2, R.A. No. 4103 People vs. Asuela, 376 SCRA 51 (2002) People vs. Enriquez, 465 SCRA 407 (2005) People vs. Gardon, G.R. No. 169872, 27 September 2006

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PROBATION LAW 1. Accused may apply for probation within the period for perfecting an appeal. 2. No application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction. 3. 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. 4. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. 5. An order granting or denying probation shall not be appealable.7 In Vicoy vs. People, it was held that Section 7, Rule 120, of the Rules on Criminal Procedure is explicit that a judgment in a criminal case becomes final when the accused has applied for probation. This is totally in accord with Section 4 of Presidential Decree No. 968 (Probation Law of 1976, as amended), which in part provides that the filing of an application for probation is deemed a waiver of the right to appeal. Thus, there was no more opportunity for petitioner to exercise her right to appeal, the judgment having become final by the filing of an application for probation.8 Is the accused barred from applying for probation if the only raised in his appeal is the impropriety of the penalty imposed upon him? Although it has been suggested that an appeal should not bar the accused from applying for probation if the appeal is solely to reduce the penalty to within the probationable limit may be equitable, we are not yet prepared to accept this proposition, specially given the factual circumstances of this case. Had the petitioners’ appeal from the decision of the trial court raised the impropriety of the penalty imposed upon them as the sole issue, perhaps this Court would have been more sympathetic to their plight. Unfortunately, their misrepresentation has led to their own undoing.9 Disqualified offenders: a)

those sentenced to serve a maximum term of imprisonment of more than six years;

b) those convicted of subversion or any crime against the national security or the public order; c) those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or fine of not less than two hundred pesos; and, d)

those who have been once on probation under the provisions of this Decree.10

Section 9 paragraph (c) is in clear and plain language, to the effect that a person who was previously convicted by final judgment of an offense punishable by imprisonment of not less than one month and one day and/or a fine of not less than two hundred pesos, is disqualified from applying for probation. This provision of law is definitive and unqualified. There is nothing in Section 9, paragraph (c) which qualifies "previous conviction" as referring to a conviction for a crime which is entirely different from that for which the offender is applying for probation or a crime which arose out of a single act or transaction as petitioner would have the court to understand.11 P.D. No. 1829 DECREE PENALIZING OBSTRUCTION OF APPREHENSION AND INVESTIGATION OF CRIMINAL OFFENDERS Prohibited acts: Any person who, knowingly or willfully, obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following:

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Sec. 4, P.D. 968 383 SCRA 707 (2002) 9 Lagrosa vs. People, 405 SCRA 357 (2003) 10 Sec. 9, P.D. 968 11 Pablo vs. Castillo, 337 SCRA 176 (2000) 8

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a. Preventing witnesses from testifying in any criminal proceedings or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats; b. Altering, destroying, suppressing or concealing any paper, record, document, or object with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases; c. Harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction; d. Publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes; e. Delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscals’ offices, in Tanodbayan, or in the courts; f. Making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in criminal cases; g. Soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discontinuing, or impending the prosecution of a criminal offender; h. Threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of, or in official proceedings in criminal cases; i. Giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purpose of background information and not for publication and publishing or disseminating the same to mislead the investigator or the court. If any of the acts mentioned herein is penalized by other law with a high penalty, the higher penalty shall be imposed.12 Violation of P.D. No. 1829 may be absorbed in rebellion. Violation of P.D. No. 1829 cannot be prosecuted separately from rebellion if the act is committed with political or social motives, that is in furtherance of rebellion. It should be deemed to form part of the crime of rebellion.13 R.A. No. 7080 ANTI-PLUNDER LAW Definition of Plunder. Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts, to wit: 1. through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury; 2. by receiving, directly or indirectly, any commission, gift, percentage, kickbacks, or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; 3. by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidies; 4. by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; 5. by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interest; or 12 13

Sec. 1, P.D. 1829 Enrile vs. Amin, 189 SCRA 573 (1990)

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by taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State.14 Suspension and Loss of Benefits Any public officer against whom any criminal prosecution under a valid information under this Act in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and other benefits which he failed to receive during suspension, unless in the meantime, administrative proceedings have been filed against him.15 Period of Prescription The crime punishable under this Act shall prescribe in twenty (20) years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel.16 Plunder, although punished in a special law, is a malum in se. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se.17 P.D. No. 1612 ANTI-FENCING LAW Fencing defined. It is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.18 Presumption of Fencing Mere possession of any goods, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.19 Elements of Fencing. The essential elements of the crime of fencing are as follows: (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, possesses, 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 crime of robbery or theft; (3) the accused knew or should have shown that the said article, item, object or anything of

14 15 16 17 18 19

Sec. 2, R.A. No. 7080, as amended by R.A. 7659 Sec. 5, R.A. No. 7080 Sec. 6, R.A. No. 7080 Estrada vs. Sandiganbayan, 369 SCRA 394 (1999) Sec. 2 [a], P.D. No. 1612 Sec. 5, P.D. No. 1612

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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. Fencing is malum prohibitum, and P.D. No. 1612 creates a prima facie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value which has been the subject of robbery or theft, and prescribes a higher penalty based on the value of the property. The stolen property subject of the charge is not indispensable to prove fencing. It is merely corroborative of the testimonies and other evidence adduced by the prosecution to prove the crime of fencing. xxx For the accused prosecuted for fencing to be convicted thereof, it is necessary that there must be proof that the decision in the criminal case for robbery or theft, wherein the person from whom the former acquired the stolen item is charged, must have attained finality.20 Under what law should the accessory in theft or robbery be prosecuted? The accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, the accused ceases to be a mere accessory but becomes a principal in the crime of fencing. Otherwise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses. The State may thus choose to prosecute him either under the Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem inevitable considering that fencing is malum prohibitum, and P.D. No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property.21 Facts: Rosita Lim lost certain items and Manuelito Mendez confessed that he stole those items and sold them to Tan. However, she never reported the theft or even loss to the police. After Mendez confessed to the unlawful taking of the items, she forgave him, and did not prosecute him. Is Tan guilty of fencing? Ruling: No. Theft is a public crime. It can be prosecuted de oficio, or even without a private complainant, but it cannot be without a victim. As Rosita Lim did not complain to the public authorities of the felonious taking of her property nor reported its loss, it cannot be held for certain that there was committed a crime of theft. Thus, the first element of the crime of fencing is absent, that is, crime of robbery or theft has been committed.22 B.P. Blg. 22 BOUNCING CHECKS LAW Gravamen of B.P. Blg. 22 What the law punishes is the issuance of a worthless check and not the purpose for which such check was issued nor the terms or conditions relating to its issuance. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. The crime is one against public order and is malum prohibitum. The law is intended to safeguard the interests of the banking system and the legitimate checking account user. It is not intended nor designed to coerce a debtor to pay his debt, nor to favor or encourage those who seek to enrich themselves through manipulation and circumvention of the purpose of the law.23 Elements of violation of B.P. Blg. 22. The law enumerates the elements of violation of B.P. 22, namely (1) the making, drawing and issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.24

20 21 22 23 24

Francisco vs. People, 434 SCRA 122 (2004) Tan vs. People, 313 SCRA 220 (1999) Tan vs. People, 313 SCRA 220 (1999) Sia vs. People, 428 SCRA 206 (2004) Bayani vs. People, 436 SCRA 113 (2004)

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How is the element of “knowledge of insufficiency of funds or credit in the drawee bank for the payment of a check upon its presentment” established? Because this element involves a state of mind which is difficult to establish, Section 2 of the law creates a prima facie presumption of such knowledge.25 For this presumption to arise, the prosecution must prove the following: (a) the check is presented within ninety (90) days from the date of the check; (b) the drawer or maker of the check receives notice that such check has not been paid by the drawee; and (c) the drawer or maker of the check fails to pay the holder of the check the amount due thereon, or make arrangements for payment in full within five (5) banking days after receiving notice that such check has not been paid by the drawee. In other words, the presumption is brought into existence only after it is proved that the issuer had received a notice of dishonor and that within five days from receipt thereof, he failed to pay the amount of the check or to make arrangements for its payment. The presumption or prima facie evidence as provided in this section cannot arise, if such notice of nonpayment by the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the drawer, since there would simply be no way of reckoning the crucial 5-day period. Furthermore, the notice of dishonor must be in writing; a verbal notice is not enough.26 A mere oral notice or demand to pay would appear to be insufficient for conviction under the law. Both the spirit and the letter of the Bouncing Checks Law require for the act to be punished thereunder not only that the accused issued a check that is dishonored, but also that the accused has actually been notified in writing of the fact of dishonor.27 Not only must there be a written notice of dishonor or demand letters actually received by the drawer of a dishonored check, but there must also be proof of receipt thereof that is properly authenticated, and not mere registered receipt and/or return receipt.28 If the maker or drawer pays, or makes arrangements with the drawee bank for the payment of the amount due within the five-day period from notice of the dishonor given to the drawer, it is a complete defense; the accused may no longer be indicted for violation of Section 1, B.P. Blg. 22. If he is so indicted, he may set up the payment of the amount due as a complete defense.29 Notice of dishonor to the corporation is not notice to the employee or officer who drew or issued the corporate check. If the drawer or maker is an officer of a corporation, the notice of dishonor to the said corporation is not notice to the employee or officer who drew or issued the check for and in its behalf. Case where demand or notice of dishonor was dispensed with. Facts: Petitioner and Josefina went to the house of Myrna. Josefina, introduced the petitioner to Myrna as her best friend and a good payer. Josefina told Myrna that petitioner wanted her checks encashed. In view of Josefina’s assurance that petitioner is trustworthy, Myrna agreed to encash the checks. Petitioner then issued to Myrna three postdated checks. When Myrna presented the checks for payment to the drawee bank, they were dishonored as they were drawn against insufficient funds. As Myrna did not know petitioner’s address, she immediately informed Josefina about the dishonored checks. The latter told Myrna not to worry and repeated her assurance that petitioner is her best friend and a good payer. Myrna tried to get petitioner’s address from Josefina, but the latter refused and instead made the assurance that she will inform petitioner that the checks were dishonored. When Josefina failed to abide by her promise, Myrna, without sending any notice to petitioner, filed a criminal complaint to violation of B.P. Blg. 22 against the latter. Will the complaint prosper despite the absence of demand or notice of dishonor sent to petitioner? Ruling: YES. In this case, the Supreme Court rejected petitioner’s contention that she was not given any notice of dishonor. Myrna had no reason to be suspicious of petitioner. It will be recalled that Josefina Dimalanta assured Myrna that petitioner is her “best friend” and “a good 25 26 27 28 29

Danao vs. CA, 358 SCRA 450 (2001) Ongson vs. People, 464 SCRA 656 (2005) Rico vs. People, 392 SCRA 61 (2002) Danao vs. CA, 358 SCRA 450 (2001) Sia vs. People, 428 SCRA 206 (2004)

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payer.” Consequently, when the checks bounced, Myrna would naturally turn to Josefina for help. It was likewise noted that Josefina refused to give Myrna petitioner’s address but promised to inform petitioner about the dishonored checks.30 Knowledge by the payee of insufficiency of funds, not a defense; exception. Knowledge by the payee of insufficiency of funds is immaterial as deceit is not an essential element of the offense under Batas Pambansa Bilang 22. The gravamen of the offense is the issuance of a bad check; hence, malice and intent in the issuance thereof are inconsequential.31 However, said circumstance was considered as a defense in the following: (1) where the rubber checks were simply issued to cover a warranty deposit in a lease contract returnable to the drawer upon the satisfactory completion of the entire period of lease. The drawer did not benefit from the deposit since the checks were used only as a deposit to serve as security for the faithful performance of the drawer’s obligation as a lessee; and (2) where a check was issued for the mere purpose of evidencing the private complainant’s share or interest in a partnership he entered into with the drawer of the check. The check was simply meant to show the drawer’s commitment that when the receivables of the partnership are collected and goods are sold and only when such collection and sale were realized, would the drawer give to the private complainant the net amount due him representing his interest in the partnership; it did not involve a debt of or any amount due and payable by the drawer. 32 In both cases, it was held that the checks were not intended to apply or for value. One who makes and issues a check on an account of another with the latter’s consent may be held liable for violation of B.P. Blg. 22. Considering that the law imposes a penal sanction on one who draws and issues a worthless check against insufficient funds or a closed account in the drawee bank, there is, likewise, every reason to penalize a person who indulges in the making and issuing of a check on an account belonging to another with the latter’s consent, which account has been closed or has no funds or credit with the drawee bank.33 The drawee bank’s representative need not be presented as a witness to testify on the dishonor of the checks. Section 3 of B.P. 22, which is in the nature of a rule of evidence, provides that the introduction in evidence of the unpaid and dishonored check with the drawee bank’s refusal to pay stamped or written thereon or attached thereto, giving the reason therefor, shall constitute prima facie proof of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof. While it is true that the presumption is merely prima facie, the accused must, nonetheless, present proof to the contrary to overcome this presumption.34 It is not required much less indispensable, for the prosecution to present the drawee bank’s representative as a witness to testify on the dishonor of the checks because of insufficiency of funds. The prosecution may present, as it did in this case, only complainant as a witness to prove all the elements of the offense charged. She is competent and qualified witness to testify that she deposited the checks to her account in a bank; that she subsequently received from the bank the checks returned unpaid with a notation ‘drawn against insufficient funds’ stamped or written on the dorsal side of the checks themselves, or in a notice attached to the dishonored checks duly given to the complainant, and that petitioner failed to pay complainant the value of the checks or make arrangements for their payment in full within five (5) banking days after receiving notice that such checks had not been paid by the drawee bank.35 R.A. No. 8294 ILLEGAL POSSESSION OF FIREARMS AND EXPLOSIVES LAW 1. Any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm or any part thereof, 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. 30

Yulo vs. People, 452 SCRA 705 (2005) Rigor vs. People, 442 SCRA 450 (2004) 32 Young vs. CA, 453 SCRA 109 (2005), citing Magno vs. CA and Idos vs. CA 33 Saguitguit vs. People, 494 SCRA 128 (2006) 34 Garcia vs. Court of Appeals, G.R. No. 138197, 27 November 2002, 393 SCRA 79 35 Recuerdo vs. People, G.R. No. 133036, 22 January 2003, 395 SCRA 638 31

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2. If homicide or murder is committed with the use of an unlicensed firearm, such use an unlicensed firearm shall be considered as an aggravating circumstance. 3. If possession of unlicensed firearm or ammunition 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. Any person who shall carry any licensed firearm outside his residence without legal authority therefore may also be held liable under R.A. No. 8294. 5. There can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as, violation of COMELEC Resolution No. 2826 (Gun Ban) 36 and that of illegal possession of dangerous drugs.37 “Use of an unlicensed firearm” in murder or homicide, a special aggravating circumstance. Where an accused used an unlicensed firearm in committing homicide or murder, he may no longer be charged with what used to be the two (2) separate offenses of homicide or murder under The Revised Penal Code and qualified illegal possession of firearms used in homicide or murder under PD 1866; 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.38 “Use of explosives” as an aggravating circumstance. In People vs. Comadre,39 it was held that RA No. 8294 did not amend the definition of murder under Article 248, but merely made the use of explosives an aggravating circumstance when resorted to in committing “any of the crimes defined in the Revised Penal Code.” The legislative purpose is to do away with the use of explosives as a separate crime and to make such use merely an aggravating circumstance in the commission of any crime already defined in the Revised Penal Code. Thus, RA No. 8294 merely added the use of unlicensed explosives as one of the aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the aggravating circumstance of “explosion” in paragraph 12, “evident premeditation” in paragraph 13, or “treachery” in paragraph 16 of Article 14, the new aggravating circumstance added by RA No. 8294 does not change the definition of murder in Article 248. Before the use of unlawfully possessed explosives can be properly appreciated as an aggravating circumstance, it must be adequately established that the possession was illegal or unlawful, i.e., the accused is without the corresponding authority or permit to possess. This follows the same requisites in the prosecution of crimes involving illegal possession of firearm which is a kindred or related offense under P.D. 1866, as amended. Memorandum receipt and Mission order cannot take the place of a duly issued firearms license. It is a settled jurisprudence that a memorandum receipt and mission order cannot take the place of a duly issued firearms license, and an accused who relies on said documents cannot invoke good faith as a defense against a prosecution for illegal possession of firearms, as this is a malum prohibitum. The rules governing memorandum receipts and mission orders covering the issuance to and the possession and/or carrying of government-owned firearms by special or confidential civilian agents may be synthesized as follows: First, special or confidential civilian agents who are not included in the regular plantilla of any government agency involved in law enforcement or receiving regular compensation for services rendered are not exempt from the requirements under P.D. No. 1866, as amended by R.A. No. 8294, of a regular license to possess firearms and a permit to carry the same outside of residence; Second, said special or confidential civilian agents are not qualified to receive, obtain and possess government-owned firearms. Their ineligibility will not be cured by the issuance of a memorandum receipt for equipment covering said government-owned firearms. Neither will they qualify for exemption from the requirements of a regular firearms license and a permit to carry firearms by the mere issuance to them of a government-owned firearms covered by a memorandum receipt; and 36

Agote vs. Lorenzo, G.R. No. 142675. July 22, 2005; Madrigal vs. People, G.R. No. 182694, 13 August 2008 People vs. Almeida, G.R. Nos.146107-09, 11December 2003, 418 SCRA 254 38 People vs. Tadeo, 389 SCRA 20 (2002) 39 431 SCRA 366 (2004) 37

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Third, said special or confidential civilian agents do not qualify for mission orders to carry firearms (whether private-owned or government-owned) outside of their residence. The foregoing rules do not apply to special or confidential civilian agents in possession of or bearing private-owned firearms that are duly licensed and covered by permits to carry the same outside of residence.40 R.A. No. 9165 COMPREHENSIVE DANGEROUS DRUGS ACT 1. Any person charged under any provision of R.A. No. 9165, regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.41 2. Any person convicted for drug trafficking or pushing under R.A. No. 9165, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law.42 3. Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable.43 4. Any person who is found guilty of “planting” any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death.44 5. In a prosecution for illegal possession of a dangerous drug, it must be shown that (1) appellants were in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the appellants were freely and consciously aware of being in possession of the drug. The crime under consideration is malum prohibitum, hence, lack of criminal intent or good faith does not exempt appellants from criminal liability. Mere possession of a regulated drug without legal authority is punishable under the Dangerous Drugs Act.45 6. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another.46 7. The elements necessary in every prosecution for the illegal sale of ‘shabu’ are: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material is the proof that the transaction or sale transpired, coupled with the presentation in court of the corpus delicti.47 8. “Possession of prohibited drugs” is a necessary element in the offense of selling them, except where the seller is also found in possession of another quantity of prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller.48 9. The presentation of a confidential informant in a buy-bust operation is not always required, especially when the sale was actually witnessed and adequately proved by other prosecution witnesses. This rule admits of exceptions, however, as when the appellant vehemently denies selling prohibited drugs; and when there are material inconsistencies in the testimonies of the arresting officers.49 10. In criminal cases involving prohibited drugs, there can be no conviction unless the prosecution shows that the accused knowingly possessed the prohibited articles in his person, or that animus possidendi is shown to be present together with his possession or control of such article. Animus possidendi is only prima facie. It is subject to contrary proof and may be rebutted by evidence that the accused did not in fact exercise power and control over the thing in question, 40

Sayco vs. People, G.R. No. 159703, 03 March 2008 Sec. 23, R.A. No. 9165 42 Sec. 24, R.A. No. 9165 43 Sec. 25, R.A. No. 9165 44 Sec. 29, R.A. No. 9165 45 People vs. Tiu, G.R. No. 149878, 01 July 2003, 405 SCRA 280 46 People vs. Tira, G.R. No. 139615, 28 May 2004, 430 SCRA 134 47 People vs. Del Mundo, G.R. No. 619141, 06 December 2006; 48 People vs. Balag-ey, G.R. No. 141532, 14 April 2004, 427 SCRA 384 49 People vs. Balag-ey, G.R. No. 141532, 14 April 2004, 427 SCRA 384 41

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and did not intend to do so. The burden of evidence is thus shifted to the possessor to explain absence of animus possidendi.50 11. In the prosecution for the sale of dangerous drugs, the absence of marked money does not create a hiatus in the evidence for the prosecution as long as the sale of dangerous drugs is adequately proven and the drug subject of the transaction is presented before the court. Neither law nor jurisprudence requires the presentation of any money used in the buy-bust operation. What is material to a prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence.51 12. A prior surveillance, much less a lengthy one, is not necessary especially where the police operatives are accompanied by their informant during the entrapment Flexibility is a trait of good police work.52 13. No surveillance of the area or the subject of the entrapment is necessary where the police officers have a reasonable ground to believe that the informer and the information given were reliable, and that a crime is indeed being perpetrated. The buy-bust operation is formed by the police officers precisely to test the veracity of the tip and in order to apprehend the perpetrator, if he in fact commits the offense, before he further endangers society. It is congruent to the very characteristic of prohibited drugs—i.e., their being easily concealed and transferred without threat of detection in small and handy quantities,—allows its sale, use and delivery with relative facility.53 14. Section 21 of R.A. No. 9165 materially requires the apprehending team having initial custody and control of the drugs to, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.54 15. Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.55 16. In seizures covered by search warrants, the physical inventory and photograph must be conducted in the place where the search warrant was served. On the other hand, in case of warrantless seizures such as a buy- bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized, as it is more in keeping with the law’s intent of preserving their integrity and evidentiary value.56 17. More than just the fact of possession, the fact that the substance illegally possessed in the first place is the same substance offered in court as exhibit must also be established with the same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.57

50

People vs. Peñaflorida, G.R. No. 175604, 10 April 2008 Suson vs. People, 494 SCRA 691 (2006) 52 People vs. Nicolas, G.R. No. 170234, 08 February 2007 53 People vs. Macabalang, G.R. No. 168694, 27 November 2006 54 People vs. Obminranis, G.R. No. 181492, 16 December 2008 55 People vs. Bondad, G.R. No. 173804, 10 December 2008 56 People vs. Sanchez, G.R. No. 175832, 15 October 2008 57 People vs. Dela Cruz, G.R. No. 181545, 08 October 2008, citing Lopez vs. People ; People vs. Mallillin, G.R. No. 172953, 30 April 2008 51

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18. What the Dangerous Drugs Act punishes is the possession of the dangerous or regulated drugs or substances without authority. Whether the substance is pure or unadulterated is not material; hence, quantitative examination of the substance to determine its purity is not indispensable for conviction. Neither does it affect the penalty imposed, for any person who unless authorized by law possesses shabu or methylamphetamine hydrochloride, shall be punished with reclusion perpetua to death; and a fine ranging from five hundred thousand pesos to ten million pesos if two hundred (200) or more grams thereof are found in his possession.58 R.A. No. 9160 ANTI-MONEY LAUNDERING ACT Money laundering is a crime whereby the proceeds of an unlawful activity are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following: a. b.

c.

Any person knowing that any monetary instrument or property represent, involves, or relates to, the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property. Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above. Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so.59 Prosecution of Money Laundering (a)

any person may be charged with and convicted of both the offense of money laundering and the unlawful activity. (b) any proceeding relating to the unlawful activity shall be given precedence over the prosecution of any offense or violation under R.A. No. 9160 without prejudice to the freezing and other remedies provided.60 AMLC’s Authority to Freeze Bank Account Upon determination that probable cause exists that any deposit or similar account is in any way related to an unlawful activity, the AMLC may issue a freeze order, which shall be effective immediately, on the account for a period not exceeding fifteen (15) days. Notice to the depositor that his account has been frozen shall be issued simultaneously with the issuance of the freeze order. The depositor shall have seventy-two (72) hours upon receipt of the notice to explain why the freeze order should be lifted. The AMLC has seventy-two (72) hours to dispose of the depositor's explanation. If it falls to act within seventy-two (72) hours from receipt of the depositor's explanation, the freeze order shall automatically be dissolved. The fifteen (15)-day freeze order of the AMLC may be extended upon order of the court, provided that the fifteen (15)-day period shall be tolled pending the court's decision to extend the period. No court shall issue a temporary restraining order or writ of injunction against any freeze order issued by the AMLC except the Court of Appeals or the Supreme Court.61 Authority to inquire into Bank Deposits Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any

58

People vs. Lagman, G.R. No. 168695, 08 December 2008 Sec. 4, R.A. 9160 60 Sec. 6, R.A. 9160 61 Sec. 10, R.A. 9160 59

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way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of R.A. 9160.62 Prohibitions Against Political Harassment. – R.A. No. 9165 shall not be used for political persecution or harassment or as an instrument to hamper competition in trade and commerce. No case for money laundering may be filed against and no assets shall be frozen, attached or forfeited to the prejudice of a candidate for an electoral office during an election period.63 R.A. No. 3019 ANTI-GRAFT AND CORRUPT PRACTICES ACT 1. For purposes of the provisions of R.A. No. 3019, the Sandiganbayan has jurisdiction over presidents, directors or trustees, or managers of government-owned or controlled corporations organized with original charter and those incorporated under the Corporation Code.64 2. Once a court determines that the information charging a public officer with an offense under R.A. No. 3019 or Title 7, Book II of the Revised Penal Code, or any other offense involving fraud upon government or public funds or property is valid, it is bound to issue an order of preventive suspension of the accused public officer as a matter of course.65 The order of suspension pendente lite, while mandatory in nature, is by no means automatic or self-operative. Before such suspension is imposed, a determination as to the validity of the information must first be made in a pre-suspension hearing. 3. The elements violation of Section 3[b] of R.A. 3019 are:: (1) the offender is a public officer (2) who requested or received a gift, a present, a share, a percentage, or a benefit (3) on behalf of the offender or any other person (4) in connection with a contract or transaction with the government (5) in which the public officer, in an official capacity under the law, has the right to intervene.66 4. The elements of violation of Section 3[e] of R.A. 3019 are: (1)

The accused is a public officer or a private person charged in conspiracy with the former;

(2)

The 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;

(4)

Such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and

(5)

That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.67

5. The elements of the crime of violating Section 3(g) of RA No. 3019, as amended, are as follows: (1) the offender is a public officer, (2) who enters into a contract or transaction on behalf of the government, and (3) the contract or transaction is grossly and manifestly disadvantageous to the government. Manifest means “obvious to the understanding, evident to the mind x x x and is synonymous with open, clear, visible, unmistakable, indubitable, evident and self-evident.” Gross means “flagrant, shameful, such conduct as is not to be excused.”68 R.A. No. 9344 JUVENILE JUSTICE AND WELFARE ACT Minimum age of criminal responsibility. 62

Sec. 11, R.A. 9160 Sec. 16, R.A. 9160 64 People vs. Sandiganbayan and Alas, 451 SCRA 413 (2005) 65 Flores vs. Layosa, 436 SCRA 337 (2004) 66 Garcia vs. Sandiganbayan, G.R. No. 155574, 20 November 2006; Chang vs. People, 496 SCRA 321 (2006) 67 Go vs. Office of the Ombudsman, 413 SCRA 608 (2003) 68 Morales vs. People, 385 SCRA 259 (2002) 63

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1. A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability.69 2. A child above fifteen (15) years but below eighteen years of age shall likewise be exempt from criminal liability, xxx unless he/she has acted with discernment. 70 In which case, minority may be appreciated as a privileged mitigating circumstance. 3. Persons below eighteen years of age shall be exempt from criminal prosecution for the crime of vagrancy and prostitution under Article 202 of the Revised Penal Code, of mendicancy under Presidential Decree No. 1563, and sniffing rugby under Presidential Decree No. 1619.71 -o0o/updated-072210

69 70 71

Sec. 6, first par., R.A. No. 9344 Sec. 6, second par., R.A. No. 9344 Sec. 58, R.A. No. 9344

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