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SPL Reviewer
- The penalty next lower should be based on the penalty prescribed by the
Code for the offense:
o w/out first considering any modifying circumstance attendant to the
commission of the crime.
Example:
- Penalty prescribed: prision correccional max to prision mayor min
- Penalty next lower: prision correccional min to med
- Thus minimum term: anywhere w/in 6 mos and 1 day to 4 years and 2 mos
RELEVANCE OF MAXIMUM AND MINIMUM PERIODS
- Maximum Period: Important for the imposition of accessory penalties. Also
mitigating and aggravating circumstances is required to be considered ONLY
in the imposition of the maximum term.
- Minimum Period: Important for determination of eligibility for parole (the
convict must serve the minimum period before he becomes eligible for
parole)
HOW TO APPLY THE ISL
1. First: Determine the penalty imposable by law
2. Second, Determine the existence of aggravating and mitigating
circumstances
o Aggravating: Apply the maximum period
o Mitigating: Apply the minimum period
o Both Aggravating and Mitigating are Present: Offset each other
o Special Aggravating: Apply the maximum period regardless of the
presence of mitigating circumstances
o Privileged Mitigating: Apply such privileged mitigating before special
aggravating
3. Third: Determine the minimum period - 1 degree lower from penalty
prescribed by law for the offense
4. Fourth: Judge will exercise discretion in determining the IS which can be
anywhere within the range of the penalty next lower
ISL APPLICABLE ALSO IN DRUG CASES
- It applies to drug offenses PROVIDED:
o Accused has NOT committed any other act which would put him w/in
the exceptions to said law
o the penalty to be imposed:
does not involve reclusion perpetua or death
BUT will exceed 1 year of imprisonment.
Section 1 of the ISL: 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"
- This quoted portion refers to an offense under a special law wherein the
penalty imposed was not taken from and is w/o reference to the RPC
- This rule on IS 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 RPC,
hence there could be no minimum "within the range of the penalty next
lower to that prescribed by the Code for the offense,"
- Such offense, although provided for in a special law, is now in the effect
punished by and under the Revised Penal Code.
PENALTY REQUIRED FOR APPLICABILITY OF ISL
1. The penalty must be divisible
2. Imprisonment must be one of the penalties
3. Imprisonment must exceed 1 year
WHEN THE BENEFITS OF THE ISL ARE NOT APPLICABLE
1. Offenses punished by death or life imprisonment.
2. Those convicted of treason (Art. 114), conspiracy or proposal to commit
treason (Art. 115).
3. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134),
sedition (Art. 139), or espionage (Art. 117).
4. Those convicted of piracy (Art. 122).
5. Habitual delinquents (Art. 62, par. 5).
6. Those who escaped from confinement or those who evaded sentence.
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7. Those granted conditional pardon and who violated the terms of the same
(Art. 159).
8. Those whose maximum period of imprisonment does not exceed one year.
9. Those who are already serving final judgment upon the approval of the
Indeterminate Sentence Law.
10.
Those offenses or crimes not punishable by imprisonment such as
distierro and suspension.
Note: Nos 2-4 are crimes against national security
Life Imprisonment
Does not carry any
accessory penalty
May be reduced by one or Cannot be so reduced.
two degrees
Has a duration of from 20 Does not have a fixed
years and 1 day to 40 years duration or extent
BUT may span the
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REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE THE SAME BEING INDIVISIBLE
- IF reclusion perpetua was reclassified as a divisible penalty, then Art 63 of the
RPC would lose its reason and basis for existence.
- The imputed duration of 30 years of reclusion perpetua, only serves as the
basis for determining the convict's eligibility:
o for pardon or
o for the application of the 3 fold rule in the service of multiple penalties.
AN ACCUSED SENTENCE TO RECLUSION PERPETUA IS STILL ENTITLED TO THE REDUCTION OF HIS
PREVENTIVE IMPRISONMENT
- Either full or of his preventive imprisonment (imprisonment during trial)
- Accused is still entitled to the full credit of his preventive imprisonment
because Art 29 of the RPC does not distinguish between divisible and
indivisible penalties.
QUALIFIED THEFT: PENALIZED BY RECLUSION PERPETUA IF THE AMOUNT INVOLVED IS OVER
22K
- Art 309 RPC, the maximum of the penalty for qualified theft is prision mayor
to reclusion temporal.
- Art 310 RPC, the penalty for the crime shall be 2 degrees higher than the
specified in Art 309.
- Art 74 RPC, In case the law prescribes a penalty higher than another given
penalty, and if such higher penalty is death, the penalty shall be reclusion
perpetua of 40 years with the accessory penalties of death under Art 40 RPC.
- The accused shall not be entitled to pardon before the lapse of 40 years.
4. Comply with a program of payment of civil liability to the victim of his heirs;
5. Undergo medical, psychological or psychiatric examination and treatment
and/or enter and remain in a specific institution, when required for that
purposes;
6. Pursue a prescribed secular study or vocational training;
7. Attend or reside in a facility established for instruction or recreation of persons
on probation;
8. Refrain from visiting houses of ill-repute;
9. Abstain from drinking intoxicating beverages to excess;
10. Permit the probation officer or an authorized social worker to visit his home
and place of work;
11. Reside at premises approved by the court and not to change his residence
w/o prior written approval; and
12. 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.
13. Plant trees (see circular of the SC )
RULES ON OUTSIDE TRAVEL OF PROBATIONER
A probationer who desires to travel outside the jurisdiction of the city or provincial
probation officer, MUST SEEK THE PERMISSION OF:
- IF for NOT more than 30 days:
o The parole and probation officer
- If for MORE than 30 days:
o The parole and probation officer AS WELL as the court
EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION
IF the accused appeals his conviction:
- For the purpose of totally reversing his conviction OR
- EVEN if the appeal is only with respect to the penalty (on the ground that it is
excessive or wrong or is probationable)
He is deemed to have waived his right to probation. If already filed, then it is an
abandonment of such petition for probation.
CONFIDENTIALITY OF RECORDS OF PROBATION
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9. Those who have perfected an appeal (probation and appeal are mutually
exclusive remedies)
Period of Probation
IF
sentence
of Probation: shall NE 2 years
imprisonment is NOT
more than 1 year
In all other case
Probation: not to exceed 6
years;
In case the penalty is Probation: not be less than
fine
the period of subsidiary
imprisonment nor more than
twice of the subsidiary
imprisonment.
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- If the accused violates the condition of the probation before the issuance of
said order, the probation may be revoked by the Court
NOTES FROM LECTURE:
Procedure Upon Application for Probation
1. Order by the court to decide on the application
2. Comment of prosecutor not mandatory
3. Hearing in the application shall be conducted especially upon opposition of
the prosecution
4. A post-sentence investigation shall be made and be submitted w/in 60 days
to the court
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ACTS PUNISHABLE IN BP 22
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 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.
c.
Any person who issue any check whose account already closed
whether the drawee knows that his account is closed or not.
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
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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.
AGREEMENT OF PARTIES
REGARDING THE CHECK
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IS NOT A DEFENSE
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.
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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.
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 (now M.T.C. of the proper town 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,
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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 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 all-embracing.
(Ibasco vs CA, 261 SCRA 572)
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FENCING, DEFINED: The act of any person who, with intent to gain for himself or for
another:
- shall buy receive, possess, keep, acquire, conceal, sell, 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
Sec. 2 of PD No. 1612
Note: Crime of estafa is not included. It is limited to robbery and theft.
FENCE, DEFINED: Includes any person, firm, association, corporation or partnership
or other organization who/which commits the act of fencing.
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- When there is no proof that the accused bought or sold articles knowing the
same to be stolen the 3rd element is lacking
- There is no proof that the accused had knowledge that the product was
stolen when he purchased the stereo from a known merchant and the unit is
displayed for sale in their store.
- When the accused can present sales receipts covering the purchase of items
from a known hardware store, it means that there was no reason for them to
suspect that the items were stolen
- These actions are not indicative of a conduct of a guilty person.
INTENT TO GAIN NEED NOT BE PROVEN UNDER THE ANTI-FENCING LAW (PD 1612): (When
the prosecution chooses to prosecuted under a special law instead of
prosecuting under the RPC)
- The last element need not be proven.
- Intent to gain need not be proven in crimes punishable by a special law such
as the Anti-Fencing Law.
- These crimes are called "acts mala prohibita".
- The only inquiry is whether the law has been violated
- When the act is prohibited by a special law, intent is immaterial.
DELIBERATE INTENT OR DOLO OR DECEIT IS NOT ALSO MATERIAL IN ANTI-FENCING UNDER PD
1612
- Dolo or deceit is immaterial in crimes punishable by special statute.
- It is the act itself which constitutes the offense and not the motive or intent.
- Intent to gain is a mental state, the existence of which is demonstrated by
the overt acts of the person.
- The mental state is presumed from the commission of an unlawful act.
property
belonging
to
another, with intent to gain,
by means of violence against
or intimidation of any
person, or using force upon
anything
Neither is the crime of
robbery or theft made to
depend on an act of fencing
in order that it can be
consummated
PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF THE OFFENDER IS NOT NECESSARY
IN ANTI-FENCING
- Mere possession thereof is enough to give rise to a presumption of fencing.
- This presumption must be overthrown by sufficient and convincing evidence.
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PD No. 1829
PENALIZING OBSTRUCTION OF APPREHENSION
AND PROSECUTION OF CRIMINAL OFFENDERS
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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 a 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 purposes of background information
and not for publication and publishing or disseminating the same to mislead the
investigator or the court.
What are some of the instances when questions against charges under PD 1829
reached the Supreme Court?
In Posadas vs. Ombudsman (G.R. No. 131492, 29 September 2000), certain officials
of the University of the Philippines (UP) were charged for violating PD 1829
(paragraph c above). The UP officers objected to the warrantless arrest of certain
students by the National Bureau of Investigation (NBI). According to the Supreme
Court, the police had no ground for the warrantless arrest. The UP Officers,
therefore, had a right to prevent the arrest of the students at the time because
their attempted arrest was illegal. The need to enforce the law cannot be justified
by sacrificing constitutional rights.
In another case, Sen. Juan Ponce Enrile was charged under PD 1829, for allegedly
accommodating Col. Gregorio Honasan by giving him food and comfort on 1
December 1989 in his house. Knowing that Colonel Honasan is a fugitive from
justice, Sen. Enrile allegedly did not do anything to have Honasan arrested or
apprehended. The Supreme Court ruled that Sen. Enrile could not be separately
charged under PD 1829, as this is absorbed in the charge of rebellion already filed
against Sen. Enrile.
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- It refers only to an action for removal from office and does not apply to
criminal cases 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.
- Article 89 of the RPC, which enumerates the grounds for extinction of
criminal liability, does not include reelection to office.
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