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Last Minute Tips in Criminal Law 2017- Draft

1. What is the "chain of custody" requirement in drug offenses? What is its objective? What is the
effect of failure to observe the requirement?

“Chain of custody” is the duly recorded authorized movement and custody of seized drugs or controlled
precursors and essential chemicals or plant sources of dangerous drugs or laboratory equipment at each
stage, from the time of seizure/confiscation; transmittal to the forensic laboratory for examination and
safekeeping; presentation of the evidence in court and up to its destruction. Such record, of movement
and custody of seized item shall include the identity and signature of the person who held temporary
custody of the seized item, the dates and time when such transfers of custody were made in the course of
safekeeping and for its use in court as evidence and final disposition (2014 Revised PNP Manual on Anti-
Illegal Drugs Operations and Investigation 2014).

Its objective is to remove unnecessary doubts concerning the identity of the evidence; in order for the
State to establish beyond doubt the identity of the dangerous drugs by showing that the dangerous drugs
offered in court as evidence were the same substances bought during the buy-bust operation (PEOPLE
Accused, RECTO ANGNGAO y MAKAY, G.R. No. 189296, March 11, 2015, BERSAMIN,J).

Failure to observe the “chain of custody” requirement renders the evidence questionable, not trustworthy
and insufficient to prove the corpus delicti beyond reasonable doubt (People v. Tan, GR No. 191069,
November 15, 2010).

2. What must be proven in order to establish the “chain of custody” in buy-bust operations?

The different links that the prosecution must prove in order to establish the chain of custody in the buy-
bust operations, namely:
a. First, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the
apprehending officer;
b. Second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer;
c. Third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory
examination; and
d. Fourth, the turnover and submission of the marked illegal drug seized by the forensic chemist to the
court (People vs. Quesido, GR No. 189351, April 10, 2013).

3. Would non-compliance with the prescribed procedural requirements in the chain of custody
render the seizure void?

No. Mere lapses in procedure do not invalidate a seizure if the integrity and evidentiary value of the
seized items can be shown to have been preserved.

As held in the case of People v. Alejandro, G.R No. 176350, August 10, 2011, the Supreme Court
pronounced that non-compliance with the prescribed procedural requirements does not necessarily
render the seizure and custody of the items void and invalid; the seizure may still be held to be valid,
provided that (a) there is a justifiable ground for the non-compliance, and (b) the integrity and
evidentiary value of the seized items are shown to have been properly preserved.

Further, in another case, the Court stressed that the failure on the part of the police officers to take
photographs and make an inventory of the drugs seized from the appellant was not fatal because the
prosecution was able to preserve the integrity and evidentiary value of the said illegal drugs (People v.
Llamado, G.R No. 185278, March 13, 2009).

However, failure to follow the procedure mandated under R.A. 9165 and its IRR must be adequately
explained. The justifiable ground for non-compliance must be proven as a fact. The court cannot presume
what these grounds are or that they even exist (People v. De Guzman, G.R No. 186498, March 26,

4. In prosecution for illegal possession of a dangerous drug, what are the essential elements that
must be established?

In prosecutions for illegal possession of a dangerous drug, it must be established that,

1. The accused was in possession of an item or an object identified to be a prohibited or regulated drug;
2. Such possession is not authorized by law, and
3. The accused was freely and consciously aware of being in possession of the drug. (People vs.
Morales, G.R. No. 134292, August 16, 2001).

5. Tiburcio asked Anastacio to join their group for a “session”. Thinking that it was for a mah-jong
session, Anastacio agreed. Upon reaching Tiburcio’s house, Anastacio discovered that it was
actually a shabu session. At that precise time, the place was already raided by the police, and
Anastacio was one of those arrested. What crime can Anastacio be charged with, if any? Explain
your answer.

Anastacio may not be charged of any crime. Sec. 7 of R.A. 9165 on the Comprehensive Dangerous
Drugs of 2002 punishes employees and visitors of a den, dive or resort where dangerous drugs are used
in any form. But for a visitor of such place to commit the crime, it is a requisite that he "is aware of the
nature of the place as such and shall knowingly visit the same." These requisites are absent in the facts

6. An alert security guard halted Rody as he was about to bring a gift-wrapped box out of the ABC
condominium. The box was opened for inspection and it was revealed that it contained plastic
bags with 6.2 kilograms of suspected shabu. The security guard forthwith apprehended Rody and
notified the NBI of the incident. When the NBI agents arrived, Rody tried but failed to evade them.
Subsequently, Rody was charged with a violation of the Dangerous Drugs Act of 1972.

Rody denied the accusation, claiming that he had no knowledge of the contents of the box and
was only instructed by a non-tenant known to him as Noy to deliver it to someone near Jollibee
Vito Cruz. He also claimed that since there is no proof for the animus possidendi or intent to
possess the shabu, he cannot be charged.

Is the contention of Rody correct?

No. The contention is not correct. Animus possidendi is a state of mind, and is thus to be determined
on a case-to-case basis by taking into consideration the prior and contemporaneous acts of the accused,
as well as the surrounding circumstances.

It cannot be disputed that Rody had animus possidendi. His conduct prior to and following his
apprehension evinced his guilty knowledge of the contents of the gift-wrapped box as shabu.
Correlatively, his willingness to run for Noy the errand of delivering the gift-wrapped box to the unnamed
person near the Jollibee Vito Cruz proved that he was serving as a courier of shabu.

The mere denial of knowledge of that he had possession of illegal drugs is insufficient to exculpate the
person found in possession of it, for he must have to satisfactorily explain how the drug came to his
possession. Without his satisfactory explanation, he will be presumed to have animus possidendi, or the
intent to possess. His guilt will then be established beyond reasonable doubt (PEOPLE OF THE

7. For an entrapment operation, the police team headed by SPO1 Cardo proceeded to Barangay
Mabuhay where Joaquin engaged in drug pushing. They spotted Joaquin vending lanzones along
the side of the road. Cardo approached Joaquin and offered to buy shabu. After a few minutes of
conversing, Joaquin took a small heat-sealed plastic sachet from his pocket and gave it to Cardo.
After accepting the sachet, Cardo made the pre-arranged signal of scratching his head to signify
the consummation of the transaction. The agents rushed towards Joaquin and placed him in
custody. Joaquin was charged with violation of RA 9165. In his defense, Joaquin claimed that his
apprehension was a product of instigation, not valid entrapment, because it was Cardo who
offered to buy shabu, and therefore he should be acquitted because instigation was an absolutory

Distinguish “Instigation” and “Entrapment”

Instigation takes place when a peace officer induces a person to commit a crime. Without the
inducement, the crime would not be committed. Hence, it is exempting by reason of public policy;
otherwise, the peace officer would be a co-principal. It follows that the person instigating must not be a
private person, because he will be liable as a principal by inducement. On the other hand, Entrapment
signifies the ways and means devised by a peace officer to entrap or apprehend a person who has
committed a crime. With or without the entrapment, the crime has been committed already. Although
entrapment is sanctioned by law, instigation is not.

The difference between the two lies in the origin of the criminal intent―in entrapment, the mens rea
originates from the mind of the criminal, but in instigation, the law officer conceives the commission of the
crime and suggests it to the accused, who adopts the idea and carries it into execution. (PEOPLE
VS.ARNOLD TAPERE G.R. NO. 178065, February 20, 2013, BERSAMIN, J.)

8. In the given case, is the defense of Joaquin tenable?

No. In the operation, Cardo offered to buy from him a definite quantity of shabu and he did not refuse the
offer. There was a consummated transaction when Joaquin handed Cardo the sachet of shabu and
accepted the payment. Also, Joaquin did not show how Cardo could have influenced him at all into doing
something so blatantly illegal. What is clear is that the decision to peddle the shabu emanated from his
own mind, such that he did not need much prodding from Cardo or anyone else to engage in the sale of
the shabu. Hence, he was not instigated or lured into committing an offense that he did not have the
intention of committing. And therefore, his defense is not tenable. (PEOPLE VS.ARNOLD TAPERE G.R.
NO. 178065, February 20, 2013, BERSAMIN, J. )

9. What are the elements needed to establish the crime of illegal sale of dangerous drugs?

To establish the crime of illegal sale of shabu as defined and punished under Section 5, Article II of
Republic Act No. 9165, the Prosecution must prove beyond reasonable doubt (a) the identity of the
buyer and the seller, the identity of the object and the consideration of the sale; and (b) the
delivery of the thing sold and of the payment for the thing. The commission of the offense of illegal
sale of dangerous drugs, like shabu, requires simply the consummation of the selling transaction, which
happens at the moment the buyer receives the drug from the seller. (PEOPLE VS.ARNOLD TAPERE
G.R. NO. 178065, February 20, 2013, BERSAMIN, J.)

10. What does the law require before initiation rites may be performed? (2002)

Section 2 of Rep. Act No. 8049 (Anti-Hazing Law) requires that before hazing or initiation rites may be
performed, notice to the school authorities or head of organizations shall be given seven (7) days before
the conduct of such rites. The written notice shall indicate: (a) the period of the initiation activities, not
exceeding three (3) days; (b) the names of those to be subjected to such activities, and (c) an
undertaking that no physical violence shall be employed by anybody during such initiation rites.

11. Atiu was among the freshmen law students who wished to join the Eagles Fraternity. She,
along with her fellow neophytes, were informed that they were required to undergo the initiation
rites, and that such rites would include physical beatings. On the first day of the initiation rites,
they were subjected to traditional forms of Eagles Fraternity initiation rites. On the second day,
they were likewise subjected to similar rites and beatings. The rites for the second day initially
ended, however, due to the insistence of Bugs Bunny and Donald Duck, alumni fraternity
members, they were re-opened once again that night. The neophytes were subjected to additional
beatings. Later that night, Atiu started shivering and mumbling incoherently. She was rushed to
the hospital wherein she was found dead on arrival. May Bugs Bunny, Donald Duck and his co-
accused be found liable for an intentional crime in this case?

They are liable for hazing. Hazing, as defined by law, is an initiation rite or practice as a prerequisite for
admission into membership In a fraternity, sorority or organization by placing the recruit, neophyte or
applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish
and similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury.
In this case, the initiation is a prerequisite for admission into the Eagles Fraternity. During the hazing, they
inflicted physical injury as a consequence, the victim died (R.A. 8049, Sect. 1; Supplied by Judge Marlo

12. Who are the different classes of persons that can be held liable under the hazing law?

Any person who commits the crime of hazing shall be liable in accordance with Section 4 of the law,
which provides different classes of persons who are held liable as principals and accomplices.

The first class of principals would be the actual participants in the hazing. If the person subjected to
hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the officers
and members of the fraternity, sorority or organization who actually participated in the infliction of physical
harm shall be liable as principals. Interestingly, the presence of any person during the hazing is prima
facie evidence of actual participation, unless he prevented the commission of the punishable acts.

The second class of principals would be the officers, former officers, or alumni of the
organization, group, fraternity or sorority who actually planned the hazing. Although these planners
were not present when the acts constituting hazing were committed, they shall still be liable as principals.
The provision took in consideration the non-resident members of the organization, such as their former
officers or alumni.

The third class of principals would be officers or members of an organization group, fraternity or
sorority who knowingly cooperated in carrying out the hazing by inducing the victim to be present
thereat. These officers or members are penalized, not because of their direct participation in the infliction
of harm, but due to their indispensable cooperation in the crime by inducing the victim to attend the

The next class of principals would be the fraternity or sorority's adviser who was present when
the acts constituting hazing were committed, and failed to take action to prevent them from
occurring. The liability of the adviser arises, not only from his mere presence in the hazing, but also his
failure to prevent the same.

The last class of principals would be the parents of the officers or members of the fraternity,
group, or organization. The hazing must be held in the home of one of the officers or members. The
parents must have actual knowledge of the hazing conducted in their homes and failed to take any action
to avoid the same from occurring.

The law also provides for accomplices in the crime of hazing. The school authorities, including faculty
members, who consented to the hazing or who have actual knowledge thereof, but failed to take any
action to prevent the same from occurring shall be punished as accomplices. Likewise, the owner of the
place where the hazing was conducted can also be an accomplice to the crime. The owner of the place
shall be liable when he has actual knowledge of the hazing conducted therein and he failed to take any
steps to stop the same (Dungo vs. People, G.R. No. 209464, July 1, 2015).

13. What are the prescribed penalties imposed upon these principals?
The prescribed penalty on the principals depends on the extent of injury inflicted to the victim. The
penalties appear to be similar to that of homicide, serious physical injuries, less serious physical injuries,
and slight physical injuries under the RPC, with the penalties for hazing increased one degree higher.
Also, the law provides several circumstances which would aggravate the imposable penalty (2016
Criminal Law Pre-week Handout by Justice Mario V. Lopez).

14. The CHR received information that a number of drug suspects are being tortured to acquire
information about the drug trade in Tondo, Manila. Upon their visit and inspection to Police
Station 1 of Tondo, Manila, they found out that there is a hidden hallway at the back of a cabinet
used as detention area for suspects. The CHR then filed a case for violation of Anti-Torture Act
against the police on duty and the Station Commander. The Station Commander contends that
they did not inflict any physical or mental torture against the suspects, hence, they cannot be held
liable for R.A.9745. Will the case prosper?

Yes. Sec. 7 of R.A. 9745 provides that, “Secret detention places, solitary confinement, incommunicado or
other similar forms of detention, where torture may be carried out with impunity. Are hereby prohibited.”
Agencies concerned shall make an updated list of all detention centers and facilities under their
respective jurisdictions with the corresponding data on the prisoners or detainees incarcerated or
detained therein such as, among others, names, date of arrest and incarceration, and the crime or
offense committed.Thus, the mere existence of a secret detention makes them liable under Anti-Torture

15. AA was arrested for committing a bailable offense and detained in solitary confinement. He
was able to post bail after two (2) weeks of detention. During the period of detention, he was not
given any food. Such deprivation caused him physically discomfort. What crime, if any, was
committed in connection with the solitary confinement and food deprivation of AA? Explain your
answer. (2012)

The crime of torture and maltreatment of prisoner is committed. Food deprivation and confinement in
solitary cell are considered as physical and psychological torture under Sec. 4(2) of the Anti-Torture Act
of 2009 or R.A. 9745. “Torture” refers to an act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person
information or a confession; punishing him/her for an act which he/she or a third person has committed or
is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason
based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent of acquiescence of a person in authority or agent of a person in authority (R.A. 9745,
Sec. 3).

16. Distinguish Rebellion from Treason.


As to criminal intent

1. To remove from the allegiance to said

Government or the laws the territory of the
Philippines or body of land, naval or other Intent to betray the government or to adhere to its
armed forces; enemy

2. To deprive the Chief Executive or

Congress of any of their powers

As to the criminal act

1. Public uprising; and 1. By levying war against the Government; and

2. By taking arms against the Government 2. By giving aid and comfort to the enemy of

As to time of commission

May be committed both during times of peace Committed during time of war
and war

As to proof needed for conviction

Two witnesess or confession rule is not 1. Testimony of two (2) witnesses, at least to the
applicable same overt act, or

2. Confession of accused in open court

17. Where both burning and death occurred at the same occasion, what crime/crimes was/were

If the main objective is the burning of the building or edifice, but death results by reason or on the
occasion of arson, the crime is simply arson, and the resulting homicide is absorbed (People vs.
Baluntong, 615 SCRA 455, G.R. 182061, March 15, 2010). However since death result by reason or on
occasion of arson, the graver penalty (reclusion perpetua to death) prescribed under Section 5 of PD No.
1613. Since the law prescribed a single penalty for committing two crimes (arson and homicide), the act
should be classified as special complex crime of arson with homicide (People vs. Villacorta, G.R. No.
172468, October 15, 2008; Supplied by Judge Marlo Campanilla). If, on the other hand, the main
objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the
means to accomplish such goal the crime committed is murder only. If the objective is, likewise, to kill a
particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover
up the killing, then there are two separate and distinct crimes committed—homicide/murder and arson
(People vs. Baluntong, 615 SCRA 455, G.R. 182061, March 15, 2010).

18. AAA, then a 29-year-old mental retardate, was invited by Butiong, her long-time neighbor, to
go over to his house because he would give her something. AAA obliged. He led her to the sofa,
where he had carnal knowledge of her. AAA remembered that she then felt pain in her abdomen
and became angry at him for what he had done.

Whether or not Butiong is guilty of the crime of rape?

Yes, Carnal knowledge of a mental retardate is rape under paragraph 1 of Article 266-A of the Revised
Penal Code, as amended by Republic Act No. 8353 because a mental retardate is not capable of giving
her consent to a sexual act. Proof of force or intimidation is not necessary, it being sufficient for the State
to establish, one, the sexual congress between the accused and the victim, and, two, the mental
retardation of the victim. It should no longer be debatable that rape of a mental retardate falls under
paragraph 1, b), of Article 266-A, supra, because the provision refers to a rape of a female deprived of
reason, a phrase that refers to mental abnormality, deficiency or retardation (PEOPLE vs. BUTIONG,
G.R. No. 168932 ,October 19, 2011, BERSAMIN).

19. One night while AAA was sleeping, XXX hugged her and kissed her nape and neck. He then
undressed AAA and went on top of her and held her hands. Afterwards, he parted AAA’s legs and
then tried to insert his penis into her vagina. XXX’s penis touched AAA’s vagina but he stopped as
soon as AAA’s cry got louder. He then threatened AAA not to disclose the incident. What crime is

XXX is guilty of attempted rape. Without showing of such carnal knowledge, XXX is guilty only of
attempted rape. Mere touching cannot be considered as slight penetration. Since XXX did not succeed in
inserting his penis in AAA’s female organ he cannot be convicted of consummated rape. Slightest penile
penetration is necessary (People v. Pareja, G.R. No. 188979, September 5, 2012).

20. AAA was awakened when she felt that somebody was on top of her. AAA found out that Cruz
was mashing her breast and touching her private part. AAA realized that she was divested of her
clothing and that she was totally naked. Cruz ordered her not to scream or she will be killed. AAA
fought back and kicked Norberto thus Cruz was not able to pursue his lustful desires.

What is the crime committed by Cruz?

Acts of Lasciviousness, Climbing on top of an undressed victim, mashing her breasts and touching her
genitalia with his hands does not constitute attempted rape. The fundamental difference between
attempted rape and acts of lasciviousness is the offender’s intent to lie with the female. In rape, intent to
lie with the female is indispensable, but this element is not required in acts of lasciviousness. Attempted
rape is committed, therefore, when the "touching" of the vagina by the penis is coupled with the intent to
penetrate. The intent to penetrate is manifest only through the showing of the penis capable of
consummating the sexual act touching the external genitalia of the female. Without such showing, only
the felony of acts of lasciviousness is committed (Cruz vs. People, G.R. No. 166441, October 8, 2014,

21. Rustom, a Filipino male went to America to undergo sex reassignment. After the operation
became successful, Rustom return to Philippines and changed her name to “Bebe Gandang
Reyna” who now has all the biological anatomy of a female. One evening, while walking in the
streets of Tondo, Robin saw “Bebe Gandang Reyna” and raped her by inserting his penis forcibly
into the “operated vagina” of “Bebe Gandang Reyna”. What crime/s, if any, did Robin commit?

Robin committed the crime of Acts of Lasciviousness. According to the criminal law expert Judge Marlo
B. Campanilla, “having sexual intercourse through force with a gay, who underwent gender reassignment,
is not rape through sexual intercourse since the victim is not a woman. Female gender of the victim is an
element of this crime. Neither instrument or object rape is committed since the offender used his penis,
and not an instrument or object, in committing the crime, and the opening made through surgery to
resemble the appearance of a vagina is not within the contemplation of the words ‘genital or anal orifice’.
Nor rape through oral intercourse or sodomy is committed because such surgical orifice is not a mouth or
anal orifice. Hence, the crime committed is acts of lasciviousness.”

22. Distinguish ex post facto law from bill of attainder


A law which makes an innocent a crime after the act was A law which inflicts punishment on a
committed. named individual or a group of individuals
without judicial trial.

A law which aggravates a crime, or makes it greater than Pertains to a named individual or to
when it was committed, or which charges the punishment member of a group.
and inflicts a greater penalty than the law governing the
crime when committed.
Note: Ex post facto law pertains to the act while a bill of attainder pertains to a named individual or to
members of a group.

23. Distinguish Rape from Seduction, Acts of Lasciviousness, and Abduction

ESS and
266-A) . 342, 343)
SS(Art. 336)
1. By using Qualified Seduction: Acts of Forcible
force or 1. abuse of authority; lasciviousness: abduction:
intimidation, 2. abuse of confidence; or 1. By using force Female was
or 3. relationship or intimidation, abducted against
Simple Seduction: by means of or her will.
2. When the deceit
woman is 2. When the Victim is under
deprived of woman is 12 years of age
reason or deprived of
otherwise reason or Consented
unconscious, otherwise Abduction:
or unconscious, or Female was
abducted with
Circumstance 3. By means 3. When the her consent but
s Present of fraudulent woman is under only after
machination 12 years of age solicitation or
or grave cajolery from the
abuse of Consented acts offender
authority, or of
4. When the 1. Abuse of
woman is authority
under 12 2. Abuse of
years of age confidence
or demented. 3. Relationship
4. By means of

Qualified Seduction with the Acts of Forcible

circumstance of relationship lasciviousness: abduction:
Age except in age except in If it is committed
statutory rape Age and reputation of the victim is statutory rape against the will,
and not material and reputation age and
reputation of of the victim is reputation is not
Age and
the victim is Qualified circumstance with the not material material.
not material circumstance of abuse of If committed with
confidence or authority Consented acts consent, the age
of of the victim must
1. The victim must be a virgin, or lasciviousness: under 12 years of
must have a good reputation same as age
2. The age of the victim must 12 Consented
years of age or above but under Abduction:
18 years of age Reputation of the
victim is material.
Simple Seduction: Her age must be
Reputation of the victim is 12 years or
material. Her age must be 12 above but under
years or above but under 18 18 years of age
years of age

24. Who are persons exempt from the operation of our criminal laws by virtue of the principles of
public international law?

The following are not subject to the operation of our criminal laws:

a. Sovereigns and other chiefs of state.

b. Ambassadors, ministers plenipotentiary, ministers resident, and charges d’affaires.

It is a well-established principle of international law that diplomatic representatives, such as ambassadors

or public ministers and their official retinue, possess immunity from the criminal jurisdiction of the country
of their sojourn and cannot be sued, arrested or punished by the law of that country(II Hyde, International
Law, 2nd Ed., 1266).

25. How is criminal liability incurred? (1994, 1996, 1997, 1999, 2001, 2004, 2008, 2009, 2014, 2015
Bar Exam)

Art. 4 of the RPC provides that criminal liability shall be incurred by:

1. By any person committing a felony (delito) although the wrongful act done be different from that which
he intended.

2. By any person performing an act which would be an offense against persons or property, were it not for
the inherent impossibility of its accomplishment or an account of the employment of inadequate or
ineffectual means (People vs. Arpa, 27 SCRA 1037; People vs. Valdez 41 Phil 497; People vs. Pugay, G.R. No. 74324, Nov. 1988).

26. Distinguish “motive” from “intent.” (2004, 1999, 1996) May a crime be committed without
criminal intent? (1996)

Motive is the moving power that impels a person to act for a definite result. It is not considered as an
element of the crime. It is essential only when the identity of the offender is in doubt. On the other hand,
intent is the purpose for using a particular means to achieve a desired result. It is an ingredient of dolo or
malice, thus it is an element of deliberate felonies.

A crime may be committed without criminal intent in the following instances:

1. If such is a culpable felony;

2. In crimes which are mala prohibita in nature.

27. What is the effect of conspiracy as to the conspirators?

All the conspirators are liable as co-principals regardless of the extent and character of their participation
because the act of one is the act of all. Evidence as to who among the appellants delivered the fatal blow
is therefore no longer indispensable since in conspiracy, a person may be convicted for the criminal act of
another (People v. Agacer, G.R. No. 177751, December 14, 2011; 2016 Criminal Law Pre-week Handout
by Justice Mario V. Lopez).
28. Explain the concept of “treachery”.

There is treachery when the offender commits any of the crimes against persons, employing means,
methods, or forms in the execution, which tend directly and specially to insure its execution, without risk
to the offender arising from the defense which the offended party might make.

In order for treachery to be properly appreciated, two elements must be present: (i) at the time of the
attack, the victim was not in a position to defend himself; and (ii) the accused consciously and
deliberately adopted the particular means, methods or forms of attack employed by him. The
essence of treachery is the sudden and unexpected attack by an aggressor on the unsuspecting
victim, depriving the latter of any chance to defend himself and thereby ensuring its commission without
risk of himself (People v. Manulit, GR No. 192581, November 17, 2010).

29. Distinguish crimes mala in se and crimes mala prohibita. (2005, 2003, 2001, 1999, 1997)


There must be a criminal intent Sufficient that the prohibited act was

Wrong from its very nature Wrong merely because prohibited by

As to their concepts

Criminal intent governs Criminal intent is not necessary

Punished under the RPC and Violations of special laws

special laws (e.g.plunder)

Good faith, lack of criminal intent or Good faith or lack of criminalintent are
negligence are valid defenses not valid defenses; it is enough that the
prohibition was voluntarily violated
As to legal implication Criminal liability is incurred even Criminal liability is generally incurred
when the crime is attempted or only when the crime is consummated

Penalty is computed on the basis The penalty of the offender is the

of whether he is a principal same as they are all deemed principals
offender, or merely an accomplice unless the law also punishes
or accessory accomplice or accessory

Mitigating and aggravating Such circumstances are not

circumstances are appreciated in appreciated unless the special law has
imposing the penalties adopted the scheme or scale of
penalties under the RPC

30. Differentiate Pardon by the President and Pardon by the Offended Party.


36) 23)

As to the crime covered

Private pardon as bar from criminal

prosecution applies only to such as acts of
Executive pardon Can extend to any crime
Except election offense unless there is a lasciviousness, seduction and abduction
favoarable recommendation from the Comelec
and impeachable offense
Private pardon by marriage as a mode of
criminal extinction applies to acts of
lasciviouness, seduction, abduction andrape

At to the effect on civil liability

Cannot affect the civil liability ex delicto of the The offended party can waive the civil liability

As to extinguishment of criminal liability

Private pardon Does NOT extinguish criminal

liability although it may constitute a bar to the
Executive pardon Extinguishes criminal liability prosecution of the offender in seduction,
abduction, and acts of lasciviousness and in
adultery and concubinage

However, pardon by marriage in rape, acts of

lasciviousness, abduction and seduction, and
forgiveness in marital rape extinguishes
criminal liability

When granted

Executive pardon can be extended only after Private pardon as a bar from criminal
conviction by final judgment of the accused prosecution Can be validly granted only
before the institution of the criminal action

Pardon by marriageas a mode of criminal

extinction in crime against chastity and
forgiveness in marital rapeas a mode of
extinguishing criminal liability can be made

To whom granted

In seduction, abduction and acts of

lasciviousness, pardon as a bar for criminal
To any or all of the accused prosecution or pardon by marriage as a mode
of criminal extintion benefits the co–principals,
accomplices and accessories.

In rape, pardon by marriage and in marital

rape forgiveness as a mode of criminal
extinction will not benefit co-principal,
accomplice and accessories.
In adultery and concubinage, the pardon to
the spouse as a bar for criminal proecution
will benefit her paramour or concubine, and
vice versa.

As to whether it can be conditional

May be absolute or conditional Cannot validly be made if subject to a


31. Distinguish Retaliation from Self-Defense.

In retaliation, the aggression that was begun by the injured party already ceased when the accused
attacked him; while in self-defense the aggression still existed when the aggressor was injured by the
accused (People vs. Gamez, G.R. No. 202847, October 23, 2013; 2016 Criminal Law Pre-week Handout
by Justice Mario V. Lopez).

32. Name the four (4) kinds of aggravating circumstances and state their effect on the penalty of
crimes and nature thereof.



Those that can generally Those that apply only to Those that change the Those that essentially
apply to all crimes, and nature of the crime to a accompany the
can be offset by particular crimes and graver one, or brings commission of the
mitigating cannot be offset by about a penalty next crime and do not
circumstances, but if not mitigating higher in degree, and affect the penalty for
offset, would affect circumstances; cannot be offset by the crime.
onlythe maximum of the mitigating
penalty prescribed by circumstances;
[e.g. treachery/evident [e.g. evident
[e.g. dwelling, nighttime, premeditation – murder] premeditation –
recidivism] [e.g. ignominy – robbery, theft, estafa]

33. When is surrender by an accused considered voluntary and constitutive of the mitigating
circumstance of voluntary surrender?

Surrender by an offender is considered voluntary when it is spontaneous, indicative of an intent to submit

unconditionally to the authorities.

To be mitigating, the surrender must be:

a. Spontaneous, i.e., indicative of acknowledgment of guilt and not for convenience nor
b. Made before the government incurs expenses, time and effort in tracking down the offender's
whereabouts; and

c. Made to a person in authority or the latter's agents (People vs PO3 Fallorina, G.R. No.
137347. March 4, 2004).

34. In order that the plea of guilty may be mitigating, what requisites must be complied with?

For plea of guilty to be mitigating, the requisites are:

a. That the accused spontaneously pleaded guilty to the crime charged;

b. That such plea was made before the court competent to try the case and render judgment;

c. That such plea was made prior to the presentation of evidence for the prosecution.

35. Distinguish ordinary from privilege mitigating circumstances.


Can be offset by a generic aggravating circumstance. Cannot be offset by any aggravating


Penalty is lowered to a minimum period of the penalty Penalty is lowered by one or two degrees.

Not considered when what is prescribed is single Always considered whether the
indivisible penalty. prescribed penalty is divisible or

36. a) Define "Battered Woman Syndrome."

(b) What are the three phases of the Cycle of Violence under the "Battered Woman Syndrome"?

(c) Would the defense prosper despite the absence of any of the elements for justifying
circumstances of self-defense under the Revised Penal Code? Explain.

a. “Battered Woman Syndrome” refers to a scientifically defined pattern of psychological and

behavioral symptoms found in women living in battering relationships as a result of cumulative abuse
(Sec. 3[c], R.A. 9262).
b. Three (3) Phases of the Cycle of Violence Characterizing Battered Wife Syndrome: (TAT)
1. Tension-building Phase – minor battering occurs. It could be verbal or slight physical abuse or
another form of hostile behavior.
2. Acute Battering Incident – characterized by brutality, destructiveness and sometimes, death.
3. Tranquil, loving (or, at least, nonviolent) phase – the couple experience profound relief. The
batterer may show a tender and nurturing behavior towards his partner. On the other hand, the
battered woman tries to convince herself that the battery will never happen again.

c. Yes, the defense will prosper. Sec. 26 of R.A. 9262 provides that victim-survivors who are found by
the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability
notwithstanding the absence of any of the elements of justifying circumstances of self-defense under
the RPC.
37. What are the kinds of Complex Crime?

Compound Crime Complex Crime Proper Special Complex Crime

Compound crime (delito Complex Crime Proper (delito Composite Crime or Special
compuesto) - a single act complejo) – when an offense is a complex Crime – refers to
constitute two or more grave or necessary means of committing two or more crimes where
less grave felonies. Its requisites another. Its requisite are: the law prescribes a single
are: penalty
1. That at least two offenses
1. That only one single act are committed;
is performed by the
offender: and 2. That one or some of the
offenses must be
2. That the single act necessary to commit the
procedures (a) two or other, and
more less grave
felonies. 3. That both or all the crimes
must be punished under
Light felonies produced by the the Revised Penal Code
same act should be treated and
punished as separate offenses
or may be absorbed by the
grave felony.

38. X barged inside a conference room. And with the use of a high-powered firearm, pressed the
gun and several bullets came out in assault and 4 people died. What crime or crimes is/are
committed by X?

X is liable for four counts of murder. Single act of pressing the trigger of high power firearm is treated as
several acts as many as there are bullets fired from gun. Because of special mechanism of this firearm,
the single act of pressing its trigger will cause the continuous firing of bullets. Thus, the accused is liable
for as many homicides as there are victims (People vs. Desierto, (C.A.) 45 O.G. 4542; People vs.
Sanchez, G.R. No. 131116, August, 27, 1999; People vs. Tabaco, G.R. Nos. 100382-100385, March 19,
1997; supplied by Judge Marlo Campanilla).

39. When can the falsification of a private document be considered as falsification? When can it
be considered as estafa?

If the falsification of a private document is committed as a means to commit estafa, the proper crime to be
charged is falsification. If the estafa can be committed without the necessity of falsifying a document, the
proper crime to be charged is estafa (Batulanon v. People, G.R. No. 139857, September 15, 2006).

40. What are the rules for the application of DIVISIBLE PENALTIES?

1. No aggravating and No mitigating: MEDIUM PERIOD

2. One mitigating: MINIMUM PERIOD

3. One aggravating: (but regardless of the number of aggravating circumstances, the courts cannot
exceed the penalty provided by law in its maximum period): MAXIMUM PERIOD

4. Mitigating and aggravating circumstances present:

- to offset each other according to relative weight
5. 2 or more mitigating and no aggravating:
- one degree lower (has the effect of a privileged mitigating circumstance) (Art. 64, RPC).

If there are 2 mitigating circumstances such as confession and surrender, these 2 mitigating
circumstances shall be considered in lowering the penalty prescribed by law by one degree. Since the 2
mitigating circumstances were already used in lowering the penalty by degree, and there is remaining
mitigating circumstance that can be used to adjust the penalty in its minimum period, the reduced shall be
imposed in its minimum period (Bacar vs. Guzman, A.M. No. RTJ-96-1349, April 18, 1997; Legrama vs.
Sandiganbayan, G.R. No. 178626, June 13, 2012; Pelonia vs. People, G.R. No. 168997, April 13, 2007;
People vs. Torpio, G.R. No. 138984, June 04, 2004).

If there are 3 mitigating circumstances, the 2 mitigating circumstances shall be considered in lowering the
penalty prescribed by law by one degree and 1 mitigating circumstance shall be taken to apply the
reduced penalty in its minimum period (Nizurtado vs. Sandiganbayan, G.R. No. 107838, December 07,
1994; People vs. Castuera, G.R. No. L-62607, December 15, 1982; Supplied by Judge Marlo

41. Discuss Prescription of Crime and Prescription of Penalty.


As to Nature Forfeiture or the loss of the Forfeiture or the loss of the right of the
right of the State to prosecute government to punish the offender
the offender fixed by law after the lapse of a certain time fixed
by law

As to Commencement From the date of discovery by From the date of evasion of service of
Period the offended party, sentence by the accused
authorities, and their agents

As to Penalty Prescribed penalty under the Penalty actually imposed by final

Contemplated law judgment

42. Bunay was found guilty by RTC of crime of Rape, was sentenced to suffer the supreme penalty
of death, and was ordered to pay the victim for civil indemnity plus exemplary and moral
damages. During the pendency of appeal Bunay died.

Whether death of the accused pending appeal extinguishes his criminal liability and civil liability?

YES. The death of the accused during the pendency of his appeal in this Court totally extinguished his
criminal liability. Under Art 89 of the RPC, Criminal liability is totally extinguished by the death of the
convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is extinguished only
when the death of the offender occurs before final judgment.

In addition, the death of the accused likewise extinguished the civil liability that was based exclusively on
the crime for which the accused was convicted (i.e., ex delicto), because no final judgment of conviction
was yet rendered by the time of his death. Only civil liability predicated on a source of obligation other
than the delict survived the death of the accused, which the offended party can recover by means of a
separate civil action (People vs Bunay, G.R. No. 171268, September 14, 2010, BERSAMIN).
43. Spouses Calapiz brought a criminal charge against Dr. Lumantas for reckless imprudence
resulting in serious physical injuries. The RTC acquitted Dr. Lumantas for insufficiency of
evidence and is liable for moral damages having found that there was preponderance of evidence
showing that Hanz received the injurious trauma from his circumcision performed by the Dr.
Lumantas. Said decision was further affirmed by the CA and opined that the acquittal did not
necessarily mean that he had not incurred civil liability. Dr. Lumantas moved for reconsideration,
but was subsequently denied.

May Dr. Lumantas be held civilly liable after having been acquitted of the crime of reckless
imprudence resulting in serious physical injuries?

YES. It is axiomatic that every person criminally liable for a felony is also civilly liable. Nevertheless, the
acquittal of the accused does not necessarily extinguish his civil liability.

Our law recognizes two (2) kinds of acquittal. First, an acquittal on the ground that the accused is not
the author of the act or omission complained of. This instance closes the door to civil liability, for a
person who has not been found to be the perpetrator of any act or omission cannot and can never be
held liable for such act or omission. Second, an acquittal based on reasonable doubt on the guilt of
the accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is
not exempt from civil liability which may be proved by preponderance of evidence only (DR. LUMANTAS,
M.D.vs.CALAPIZ, GR. No. 163753, January 15, 2014, BERSAMIN).

44. A, a lady professor, caught B, one of her students, cheating during an examination. Aside from
calling B’s attention, she confiscated his examination booklet and sent him out of the classroom.
Causing B extreme embarassment.

In class the following day, B approached A and without any warning, slapped her on the face. B
would have inflicted grave injuries on A had not C, another student, intervened. B then turned his
ire on C and punched him repeatedly, causing him injuries. What crime or crimes, if any, did B
commit? (2013, 2002, 1993)

B is liable for two counts of direct assault. First, when he slapped A, who is a person in authority
expressly mentioned in Art. 152 of the RPC, who was in the performance of her duties on the day of the
commission of the assault. Second, when he repeatedly punched C, who became an agent of the person
in authority when he came to the aid of a person in authority, A (Celig v. People, G.R. No. 173150, July
28, 2010).

45. Distinguish Arbitrary Detention, Illegal Detention, and Unlawful Arrest




Any private person Any private person Any private person or Any public officer
any public officer not vested with authority
vested with authority to detain or order the
to detain or order the detention of another
detention of another

Necessity of specific purpose

Intent to deprive liberty Intent to deprive liberty Intent to deliver the Intent to disregard
victim to the proper the constitutional right
authorities against unreasonable

Is period of detention an element?

More than 3 days unless Not more than 3 days No Yes, penalty is
the circumstance of dependent on the
simulation of authority, length of detention
serious physical injuiries,
threat to kill, minority or the
offended party is a female
or public officer is present

46. In the crime of kidnapping for ransom, is the payment of ransom indispensable?

No. That no ransom was actually paid does not negate the fact of the commission of the crime, it being
sufficient that a demand for it was made (People v. Salvador,, G.R. No.201443, April 10, 2013).

47. Distinguish Grave Threats, Light Threats and Other Light Threats.


The wrong threatened amounts to a The wrong threatened does not The wrong threatened does
crime which may or may not be amount to a crime but is always not amount to a crime and
accompanied by a condition. accompanied by a condition. there is no condition.

48. Compare and contrast Robbery and Theft.


Both involve unlawful taking as element.

Both involve personal property belonging to another.

There is intent to gain.

The taking is done with the use of violence or There is no employment of violence or
intimidation of persons or by using force upon thing. intimidation of persons or using force upon

49. How are crimes against honor classified?

Crimes against honor are classified according to the manner of their commission. Specifically:

a. Libel is committed by making use of the mass media and literary forms or literary outlets.

b. Oral Defamation by the use of oral utterances.

c. Slander by Deed by performing an act intended to cast dishonor, disrespect or contempt upon a

d. Incriminatory machinations which may either be:

(i) Incriminating an innocent person in the commission of a crime by planting evidence

(ii) Intriguing against honor by resorting to any scheme, plot, design, but not by direct spoken words, to
destroy the reputation of another

50. What are the elements of Libel?

To be liable for libel under Article 353, the following elements must be shown to exist:

a. The allegation of a discreditable act or condition concerning another;

b. Publication of the charge;

c. Identity of the person defamed; and

d. Existence of malice (Brillante v. CA, G.R. Nos. 118757 & 121571, October 19, 2004)

51. A got involved in a car accident for which he was charged with two separate offenses
Reckless Imprudence resulting in Slight Physical Injuries and Reckless Imprudence resulting in
Homicide and Damage to Property. A was convicted of the first offense and he wanted the second
information quashed on the ground of double jeopardy. Will the case prosper?

Yes, the case will prosper. Reckless Imprudence is a single crime and the consequences on persons and
property are material only to determine the penalty. The conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense, regardless of its various resulting acts. The law
penalizes the negligent act and not its result. Therefore, A’s conviction in the case of reckless imprudence
resulting in slight physical injuries bars his criminal prosecution in reckless imprudence resulting in
homicide and damage to property (Ivler v. Modesto-San Pedro, 2010).

52. Can an offender be charged on both Cybercrime Law and Anti-Child Pornography Act for
committing child pornography without violating the constitutional prohibition against double

No. Cybercrime Law merely expands the scope of the Anti-Child Pornography Act of 2009 (ACPA) so as
to include identical activities in cyberspace. ACPA’s definition of child pornography in fact already covers
the use of “electronic, mechanical, digital, optical, magnetic or any other means.” Thus, charging the
offender under both Cybercrime Law and ACPA would likewise be tantamount to a violation of the
constitutional prohibition against double jeopardy (Disini, Jr. et al. v. Secretary of Justice, G.R. No.
203335, February 18, 2014).

53. Resterio was charged with violation of B.P. 22. To prove that written notice of dishonor was
sent through registered mail, Villadolid presented the registry return receipt for the first notice of
dishonor and the registry return receipt for the second notice of dishonor, with an illegible
signature purporting to be the signature of Resterio. However, Resterio denied receiving the
written notices of dishonor.

Whether Resterio may be convicted of violating B.P. 22?

No, A notice of dishonor received by the maker or drawer of the check is indispensable before a
conviction can ensue, and such notice must be in writing. The absence of such notice deprives an
accused an opportunity to preclude a criminal prosecution. The mere presentment of the two registry
return receipts was not sufficient to establish the fact that written notices of dishonor had been sent to or
served on the petitioner as the issuer of the check. Considering that the sending of the written notices of
dishonor had been done by registered mail, the registry return receipts by themselves were not proof of
the service on the petitioner without being accompanied by the authenticating affidavit of the person or
persons who had actually mailed the written notices of dishonor, or without the testimony in court of the
mailer or mailers on the fact of mailing. Also, for notice by mail, it must appear that the same was served
on the addressee or a duly authorized agent. In this case, all that is on record is an illegible signature on
the registry receipt as evidence that someone received the letter (RESTERIO vs. G.R. No. 117438,
September 24, 2012, BERSAMIN).

54. Mr. Pinuno works as the Program Director of a Rehabilitation Program Management Office for
DPWH. He recommended to the DPWH the approval of a design of a dike. Such technical design
was actually defective, but because of his recommendation, the DPWH Secretary approved it.
They sought the services of a contractor to build it and the contractor was able to receive a total
amount of P12M for the project.Months later, the dike collapsed, causing the government to suffer
undue injury and losses.May Mr. Pinuno be held liable for violation of RA 3019, Anti-Graft and
Corrupt Practices Act?

Yes. Mr. Pinuno may be liable for violation of Sec. 3(e) of RA 3019, Anti-Graft and Corrupt Practices Act.
For a person to be held liable for violation of Sec. 3(e) of RA 3019, the following elements must concur:

1. The accused is a public officer discharging administrative, judicial or official functions;

2. He must have acted with manifest partiality, evident bad faith, or gross inexcusable negligence;

3. His action caused undue injury to any party, including the government, or has given any party an
unwarranted benefit, advantage, or preference in the discharge of his functions. Proof of the extent or
quantum of damage is thus not essential, it being sufficient that the injury suffered or benefit received can
be perceived to be substantial enough and not merely negligible.

Here, it is undisputed that Mr. Pinuno is a public officer, working as an official of DPWH and a Program
Director of Rehabilitation Program Management Office. He recommended the defective design plan of
the dike through gross inexcusable, which act caused its eventual collapse. As a result thereof, the
government suffered injury. Thus, all the elements are present and he may be held liable for violation of
such law (Soriquez v. Sandiganbayan 474 SCRA 222).

55. What are the elements of a highway robbery under P.D. 532?
The elements of highway robbery under P.D. 532 are:

1. That there is unlawful taking of property of another;

2. That said taking is with intent to gain;

3. That said taking is done with violence against or intimidation of persons or force upon things or
other unlawful means; and

4. That it was committed on any Philippine highway.

Note: To sustain a conviction for highway robbery, the prosecution must prove that the accused were
organized for the purpose of committing robbery indiscriminately. If the purpose is only a particular
robbery, the crime is only robbery, or robbery in band if there are at least four armed men (People v.
Mendoza, G.R. No. 104461, February 23, 1996; Filoteo, Jr. v. Sandiganbayan, G.R. No. 79543, October
16, 1996).

56. What is the purpose of fixing the maximum penalty under the Indeterminate Sentence Law (ISL
or ISLaw)?

The purpose of fixing the ISL is to determine up to when the convict must serve his sentence in prison.
Upon serving the maximum penalty, the accused will be released. On the other hand, the reason in fixing
the minimum is to determine when the convict will be eligible for parole. Upon serving the minimum
penalty, the accused may be released on parole. However, his release upon serving the minimum penalty
is indeterminate since the President may or may not grant him parole (2002 Bar Exam). Allowing the
convict to be released on parole upon serving the minimum penalty will achieve the purpose on parole
upon serving the minimum penalty will achieve the purpose of the ISL (1975 Bar Exam; Criminal Law
Reviewer by Judge Marlo B. Campanilla, 2017, ed.).
57. What are the instances/crimes to which the benefits of ISLAW are not applicable? (1947, 1959,
1964, 1970, 1988, 1999 and 2003 Bar Exams)

1.) Treason, conspiracy or proposal to commit treason (2012 Bar exam), misprision of treason,
rebellion or sedition, espionage or piracy;
2.) Habitual Delinquents (Note: A recidivist is not excluded from the coverage of the ISLAW-2012
Bar Exam);
3.) Those who have escaped from confinement or evaded sentence (1983 Bar exam; Note: The
law contemplates confinement in prison and not in a mental hospital; 1991 Bar Exam);
4.) Those who violated the terms of conditional pardon;
5.) Penalty of imprisonment, the maximum term of which does not exceed one year;
6.) Death Penalty or life imprisonment (Section 2 of Act No. 4103); or reclusion Perpetual (R.A.
No. 9346; 1990 Bar Exam; and)
7.) Use of trafficked victim. (Section 11 of R.A. No. 9208, as amended by R.A. No. 10364; Page
302, Criminal Law Reviewer by Judge Marlo B. Campanilla, 2017, ed.).

58. What are the rules in computing the maximum and minimum periods under the Indeterminate
Sentence Law?


Consider attending/modifying Should not exceed what is

circumstances prescribed under the Special Law
MAXIMUM (Mitigating/Aggravating)

Court has discretion to fix the Should not be less than the
minimum term any period of minimum prescribed by law
imprisonment within the penalty next
lower to that prescribed by the Code

59. De Guzman was charged of frustrated homicide. After trial the RTC rendered a decision to wit:
“The court finds accused Alfredo De Guzman y Agkis a.k.a., "JUNIOR," guilty beyond reasonable
doubt for the crime of FRUSTRATED HOMICIDE defined and penalized in Article 250 of the
Revised Penal Code and in the absence of any modifying circumstance, he is hereby sentenced to
suffer the indeterminate penalty of Six (6) Months and One (1) day of PRISION CORRECCIONAL as
MINIMUM to Six (6) Years and One (1) day of PRISION MAYOR as MAXIMUM”,

Is the penalty imposed proper?

NO. Under Section 1 of the Indeterminate Sentence Law, an indeterminate sentence is imposed on the
offender consisting of a maximum term and a minimum term. The maximum term is the penalty properly
imposed under the RPC after considering any attending modifying circumstances; while the minimum
term is within the range of the penalty next lower than that prescribed by the RPC for the offense

Conformably with Art. 50 of RPC, frustrated homicide is punished by prision mayor, which is next lower to
reclusion temporal, the penalty for homicide under Art. 249 of RPC. There being no aggravating or
mitigating circumstances present, however, prision mayor in its medium period – from 8 years and 1 day
to 10 years – is proper. As can be seen, the maximum of 6 years and 1 day of prision mayor as fixed by
the RTC and affirmed by the CA was not within the medium period of prision mayor. Accordingly, the
correct indeterminate sentence is 4 years of prision correccional, as the minimum, to 8 years and 1 day of
prision mayor, as the maximum (DE GUZMAN, JR., vs.PEOPLE GR No. 178512, Nov. 26, 2014,
60. Arnel Colinares was found guilty of frustrated homicide by the RTC. On appeal, CA affirmed.
On petition for review, SC ruled that he was only guilty of attempted homicide, in which the
penalty is “probationable”. Is Colinares now entitled to apply for probation upon remand of the
case to the lower court, even after he has perfected his appeal to a previous conviction (frustrated
homicide) which was not “probationable”?

Yes. The probation law as amended provides that, “ xxx No application for probation shall be entertained
or granted if the defendant has perfected the appeal from the judgment of conviction: Provided, That
when a judgment of conviction imposing a non-probationable penalty is appealed or reviewed, and such
judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to
apply for probation based on the modified decision before such decision becomes final.”

61. Who are disqualified to avail the benefits of Probation?

The benefits of probation shall not be extended to:

1. Those sentenced to serve a maximum term of imprisonment of more than six years (Section 9
of P.D. No. 968) unless the crime involved is possession or use of dangerous drugs committed by
first time minor offender (Section 70 or R.A. No. 9165);
2. Those convicted of any crime against national security;
(Note: R.A. 10707 has amended P.D. No. 968 by deleting the crime against public order in
Section 9 thereof. In sum, under the present law on probation, crimes against public order such
as alarm and scandal and direct assault are now probationable.)
(N.B. Rebellion is a crime against public order and not a crime against national security. But it is
not probationable since the penalty prescribed for it is higher than six years of imprisonment.
3. Those who have been previously convicted by final judgment of an offense punished by
imprisonment of more than six months and one day and/or a fine of more than P1,000;
4. Those who have been once on probation;
5. Those who are already serving sentence at the time the substantive provisions of the law
became applicable (Section 9 of P.D. No. 968, as amended by R.A. No. 10707); and
6. Those convicted of dangerous drug trafficking or pushing (Section 24 of R.A. No. 9165; 1988
Bar Exam; (Page 317-320, Criminal Law Reviewer by Judge Marlo B. Campanilla, 2017, ed.).

62. AA posted on her Facebook account that BB is the mistress of CC without actual proof for
such. CC is the husband of DD. AA is the neighbor of BB and the officemate of DD. Later, the post
of AA garnered so much likes and shares that it reached BB’s relatives and officemates causing
BB to be alienated from social events causing problems in her personal and work life. BB then
learned of AA’s post as the cause of the alienation. BB then confronted AA and was told by AA it
was because she does not like BB. A case against AA was then filed and the other persons who
liked and shared AA’s post for libel and violation of R.A. 10175?

a. Can the case prosper against AA? Why?

b. What is the penalty to be imposed?

c. Can the persons who liked and shared AA’s post be held liable?

a. Yes. The case against AA can prosper because all the elements of libel had been present in this case.
The following elements constitute libel: (i) imputation of a discreditable act or condition to another;
(ii) publication of the imputation; (iii) identity of the person defamed; and (iv) existence of malice.
Here, AA imputed that BB is a mistress of CC through a Facebook post that reached persons who can
easily identify that it was BB whom AA is talking about; and that AA has done this to damage BB’s
reputation. Thus, AA can be held liable.

b. The penalty to be imposed shall be one (1) degree higher than that provided for by the Revised
Penal Code, as amended, and special laws, as the case may be when the crimes defined and penalized
by the Revised Penal Code, as amended, and special laws, is committed by, through and with the use of
information and communications technologies (Sec. 6 of R.A. 10175).

c. No. Persons who liked and share the libelous post of AA cannot be held liable because of its
questionable effect on the freedom of expression of the people concerned.

The provisions of the Anti - Cybercrime Law on the Aiding or Abetting and Attempt in the Commission of
Cybercrimes provisions are unconstitutional because Its vagueness raises apprehension on the part of
internet users because of its obvious chilling effect on the freedom of expression, especially since the
crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. Thus, the case
against the persons who liked and shared AA’s post cannot prosper (Disni v Secreteary of Justice G.R. No. 203335, February 11, 2014).