Republic of the Philippines

Polytechnic University of the Philippines

COLLEGE OF LAW RESEARCH CORPS
Honos Habet Onus

Criminal Law
Pointers from Atty. Ramon Esguerra

1. Estafa under Art. 315 2[d] and BP 22

Estafa, Art. 315 2[d] Bouncing Checks Law, BP 22

Endorser may be liable if he acted with deceit
knowing that the check is worthless.
Check is issued to obtain valuable consideration
from the payee.
In payment of an obligation contracted at the
time of the issuance and delivery of the check.
Deceit and damage is an essential element.
Knowledge of insufficiency or lack of funds is
NOT required.
The drawer is given 3 calendar days after
receiving notice of dishonor within which to pay.
Crime against property.
Malum in se.
Endorser is not liable.
Check is issued for the purpose of applying on
account or for value.
Covers even payment of pre-existing obligation.
Deceit and damage is not an essential element.
Knowledge of insufficiency or lack of funds is
required.
The drawer is given 5 banking days after
receiving notice of dishonor within which to pay.
Crime against public interest.
Malum prohibitum. (Arellano Pre-week, pg. 49)

Owing to such differences, the simultaneous filing of BP 22 and estafa cases do not amount to double
jeopardy. While the filing of the two sets of Information for violation of BP Blg. 22 and for estafa, may
refer to identical acts committed by the accused, the prosecution thereof cannot be limited to one
offense, because a single criminal act may give rise to a multiplicity of offenses and where there is
variance or differences between the elements of an offense is one law and another law as in the case at
bar there will be no double jeopardy because what the rule on double jeopardy prohibits refers to
identity of elements in the two (2) offenses. Otherwise stated, prosecution for the same act is not
prohibited. What is forbidden is prosecution for the same offense. Hence, the mere filing of the two (2)
sets of information does not itself give rise to double jeopardy. (Rimando vs. Aldaba, G.R. No. 203583,
October 13, 2014, Perlas-Bernabe)

2. Estafa 315 2[a] & Illegal Recruitment

Separate charges for estafa and illegal recruitment

It is settled that a person may be charged and convicted separately of illegal recruitment under
Republic Act No. 8042, in relation to the Labor Code, and estafa under Article 315, paragraph 2(a) of
the Revised Penal Code.

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 The Court explicated in People v. Cortez and Yabut that: In this jurisdiction, it is settled that the offense
of illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for
conviction, while estafa is malum in se where the criminal intent of the accused is crucial for conviction.
Conviction for offenses under the Labor Code does not bar conviction for offenses punishable by other
laws. Conversely, conviction for estafa under par. 2(a) of Art. 315 of the Revised Penal Code does not
bar a conviction for illegal recruitment under the Labor Code. It follows that one’s acquittal of the crime
of estafa will not necessarily result in his acquittal of the crime of illegal recruitment in large scale, and
vice versa (People v. Ochoa, G.R. No. 173792, August 31, 2011).

Question: Odelio, Simeon, Bernardo, Renato, Rodolfo, and Rex uniformly alleged that they heard
either from a radio advertisement or a friend about an employment opportunity in East Timor
linked to Racho. On separate dates, they went to meet with Racho . They were then asked to provide
documents, fill out bio-data forms, and pay placement fees, which they did. They then left the
Philippines on different dates and stayed in East Timor while waiting for their working visas.
However, two to three months passed and yet no working visas were issued despite Racho's
promises. Thus, they went back to the Philippines, and after failing to find Racho, filed their
complaints. Can Racho be charged and convicted for both illegal recruitment in large scale and
estafa?

Answer: Racho can be convicted for both illegal recruitment and estafa. The same pieces of evidence
that establish liability for illegal recruitment in large scale confirm culpability for Estafa. It is well-
established in jurisprudence that a person may be charged and convicted for both illegal recruitment
and estafa. The reason therefor is not hard to discern: illegal recruitment is malum prohibitum, while
estafa is mala in se. In the first, the criminal intent of the accused is not necessary for conviction. In the
second, such intent is imperative. (People v. Racho, GR 227505, October 2, 2017, Perlas-Bernabe case) (UST
Pre-week, pg. 34)

3. Theft & Qualified Theft

To "take" under theft the Revised Penal Code does not require asportation or carrying away (Medina v.
People, G.R. No. 182648, June 17, 2015). It is not an indispensable requisite of theft that a pickpocket
should carry, more or less far away, a wallet taken from its owner (People v. Mercado, G.R. Nos. L-45471
and L-45472, June 15, 1938).

The term "personal property" in RPC should be interpreted in the context of the Civil Code.
Consequently, any personal property, tangible or intangible, corporeal or incorporeal, capable of
appropriation can be the object of theft. Business may be appropriated under Bulk Sales Law. Thus, the
business of providing telecommunication and the telephone service is a personal property (Laurel v.
Abrogar, G.R. No. 155076, January 13, 2009). Since asportation is not an element of theft, a personal
property can to be the object of theft as along as it is capable of appropriation although it is not capable
of "asportation" (Medina v. People, G.R. No. 182648, June 17, 2015). Intangible property is not capable of
asportation, and yet, it can be an object of theft since it is capable of appropriation.

If the property is tangible, taking is deemed complete from the moment the offender gains possession
over the thing, even if he has no opportunity to dispose of the same (People v. Bustinera, G. R. No. 148233,
June 8, 2004). If the property is intangible, taking includes controlling the destination of this property

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 stolen to deprive the owner of the property (e.g. the use of a meter tampering, use of a device to
fraudulently obtain gas, and the use of a jumper to divert electricity). Using device to control the
destination of international telephone call under the telecommunication system of PLDT without its
consent to earn by charging user of the phone at the expense of PLDT is taking the property of PLDT
of providing telecommunication service (Laurel v. Abrogar, supra).

Lost property - Any person who, having found lost property, shall fail to deliver the same to the local
authorities or to its owner, is liable for theft. If the finder surrenders the property found to a policeman,
who fails to deliver it the owner, the policeman is liable for theft. He acquired the position occupied by
the actual finder. Appropriating the property is of the same character of that made by one who
originally found the same (People v. Avila, G.R. No. L-19786, March 31, 1923).

No frustrated theft - If the bulky goods are taken by the accused inside a compound (such as SM), theft
is consummated even if the accused failed to bring out the stolen goods from the compound, which
makes him unable to freely dispose it. Inability to dispose the stolen property is not an element of theft.
Unlawful taking is the element which produces the felony in its consummated stage. Without unlawful
taking, the offense could only be attempted theft, if at all. Thus, theft cannot have a frustrated stage
(Valenzuela v. People, G. R. No. 160188, June 21, 2007). If the accused is charged with frustrated theft, he
could not be convicted of the crime charged because theft has no frustrated stage. Neither could he be
convicted of consummated theft since it was not alleged in the information. But he could be convicted
of attempted theft because this is a lesser crime, which is necessarily included in the charge of frustrated
theft (Canceran v. People, G.R. No. 206442, July 01, 2015).

Qualified Theft - Theft becomes qualified when it is, among others, committed with grave abuse of
confidence. The grave abuse of confidence must be the result of the relation by reason of dependence,
guardianship, or vigilance, between the appellant and the offended party that might create a high
degree of confidence between them which the appellant abused (People v. Tanchanco, G.R. No. 177761
April 18, 2012). An employee, who took company property, is liable for qualified theft if the stolen
properties are accessible to him (Zapanta v. People, G.R. No. 170863, March 20, 2013) because of the
circumstance of abuse of confidence (Yongco v. People, G.R. No. 209373, July 30, 2014). Making the
property accessible to the employee is an indication that the employer has confidence on him that he
will not steal the property. The employee abused such confidence by stealing it. If the accused as an
employee had no physical access to, or material possession of, the stolen goods owned by his employer,
the qualifying circumstance of abuse of confidence cannot be appreciated. Making the property non-
accessible to the employee is an indication that the employer has no confidence on him that he will not
steal the property (Viray v. People, G.R. No. 205180, November 11, 2013). (Campanilla, Pre-week, pg. 39)

Question: What are the elements of Qualified Theft under Art. 310 of the RPC?

Answer: In the following cases: People v. Manlao, G.R. No. 234023, 3 September 2018, Perlas-Bernabe, J.
and Candelaria v. People, 744 SCRA 178, 8 December 2014, Perlas-Bernabe, J., it was held that:

The elements of Qualified Theft, punishable under Article 310 in relation to Article 309 of the Revised
Penal Code (RPC), as amended, are:

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 a. the taking of personal property;
b. the said property belongs to another;
c. the said taking be done with intent to gain;
d. it be done without the owner’s consent;
e. it be accomplished without the use of violence or intimidation against persons, nor of force
upon things; and
f. it be done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave
abuse of confidence; committed by a domestic servant.

In the case of People v. Manlao supra, the accused, in maintaining her innocence, insists that as a naïve
kasambahay who hailed from a rural area and only had an educational attainment until Grade 4, she
was merely tricked in a modus operandi when she complied with the verbal instructions relayed over
the phone by a person whom she thought to be Carmel. She further points out that her non-flight
manifests her lack of intent to gain; otherwise, she would not have returned to her employers' residence
and face prosecution for the enormous value of the items taken. The Supreme Court was not convinced.
It held: Jurisprudence provides that intent to gain or animus lucrandi is an internal act which can be
established through the overt acts of the offender and is presumed from the proven unlawful taking.
Actual gain is irrelevant as the important consideration is the intent to gain. (Moya, Pre-week, pg. 20)

4. Murder (Art 248) and Homicide (Art. 249)

Elements of Homicide:

a. a person was killed;

b. the accused killed him without any justifying circumstance;
c. the accused had the intention to kill, which is presumed; and
d. the killing was not attended by any of the qualifying circumstances of Murder, or by that of
Parricide or Infanticide.

Elements of Murder:

a. a person was killed;

b. the accused killed him or her;
c. the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the
RPC; and
d. that the killing is not parricide or infanticide.

Question: What is murder in contemplation of Art. 248 of the RPC?

Answer: Murder is the unlawful killing by the accused of a person, which is not parricide or infanticide,
committed with any of the attendant circumstances enumerated in Article 248 of the Revised Penal
Code, one of which is treachery. (Moya, Pre-week, pg. 9)

Question: Explain treachery in the context of Art. 248.

Answer: The suddenness of the assault, without the slightest provocation from the victim who was
unarmed and with nary an opportunity to repel the aggression or defend himself, ineluctably qualified

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 the crime with alevosia. There is treachery when the offender commits any of the crimes against the
person, employing means, methods, or forms in the execution thereof which tend directly and specially
to insure its execution, without risk to himself arising from the defense which the offended party might
make. (People v. Samuya, 756 SCRA 365, 20 April 2015, Perlas-Bernabe, J.) (Moya, Pre-week, pg. 9)

Question: How should the court appreciate the circumstance of the assailant attacking the victims
to death using firearms?

Answer: In the case of People v. Oandasa, Jr., 793 SCRA 278, 14 June 2016, Perlas-Bernabe, J., the High
Court ruled that: The fact that the shooting of the three victims had occurred in quick succession fully
called for a finding of the attendance of treachery in the attacks against all the victims. Montegrico,
Tamanu and Paleg were drinking together outside their bunkhouse prior to the shooting when the
accused suddenly appeared from the rear of the dump truck, walked towards their table and shot
Montegrico without any warning. That first shot was quickly followed by more shots. In that situation,
none of the three victims was aware of the imminent deadly assault by the accused, for they were just
enjoying their drinks outside their bunkhouse. They were unarmed, and did not expect to be shot,
when the accused came and shot them. The attack was mounted with treachery because the two
conditions in order for this circumstance to be appreciated concurred, namely:

a. that the means, methods and forms of execution employed gave the person attacked no
opportunity to defend themselves or to retaliate; and
b. that such means, methods and forms of execution were deliberately and consciously adopted
by the accused without danger to his person.

The essence of treachery lays in the attack that came without warning, and was swift, deliberate and
unexpected, affording the hapless, unarmed and unsuspecting victims no chance to resist, or retaliate,
or escape, thereby ensuring the accomplishment of the deadly design without risk to the aggressor,
and without the slightest provocation on the part of the victims. What was decisive is that the execution
of the attack made it impossible for the victims to defend themselves or to retaliate. (Moya, Pre-week,
pg. 10)

Question: What must be proven by the prosecution for evident premeditation to be appreciated?

Answer: In the case of People v. Cirbeto, G.R. No. 231359, 7 February 2018, Perlas-Bernabe, J., it was held
that: For evident premeditation to be considered as a qualifying or an aggravating circumstance, the
prosecution must prove:

a. the time when the offender determined to commit the crime;

b. an act manifestly indicating that the culprit has clung to his determination; and
c. a sufficient lapse of time between the determination and execution, to allow him to reflect upon
the consequences of his act and to allow his conscience to overcome the resolution of his will.

In Cirbeto, the Supreme Court concurs with the appreciation of the qualifying circumstance of
treachery and affirmed the conviction of the accused for murder. However, the HIGH COURT is of a
different view with respect to the purported presence of evident premeditation: In this case, there is
dearth of evidence to prove that accused-appellant had previously planned the killing of Casipit.

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 Nothing has been offered to establish when and how he planned and prepared for the same, nor was
there a showing that sufficient time had lapsed between his determination and execution. The Court
stresses the importance of the requirement in evident premeditation with respect to the sufficiency of
time between the resolution to carry out the criminal intent and the criminal act, affording such
opportunity to coolly and serenely think and deliberate on the meaning and the consequences of what
accused-appellant had planned to do, where the interval should be long enough for the conscience and
better judgment to overcome the evil desire and scheme. In the stabbing of Casipit, this requirement is
clearly wanting. (Moya, Pre-week, pg. 10)

5. Arson and Murder with the use of fire

Question: Where both burning and death occurred at the same occasion, what crime/crimes
was/were committed?

Did death occur at the same

Crime
Arson (Simple or Destructive as
the case may be)
Murder
Two separate and distinct
crimes – homicide/ murder, Yes.
and arson
(People vs. Baluntong, 615 SCRA 455, G.R. 182061, March 15, 2010; People vs. Villacorta, G.R. No. 172468,
October 15, 2008).
Main Objective
occasion?
Burning of the building or
No.
edifice.
Kill a particular person who
may be in a building or edifice,
Yes.
when fire is resorted to as the
means to accomplish such goal.
Kill a particular person and in
fact the offender has already
done so, but fire is resorted as a
means to cover up the killing.
(Arellano Pre-week, pg. 58)

6. Robbery with Homicide under Art. 294

Elements:

a. the taking of personal property belonging to another;

b. with intent to gain;
c. with the use of violence or intimidation against a person; and
d. on the occasion or by reason of the robbery, the crime of homicide, as used in its generic sense,
was committed.

A conviction requires certitude that the robbery is the main purpose, and the objective of the malefactor
and the killing is merely incidental to the robbery. The intent to rob must precede the taking of human
life but the killing may occur before, during or after the robbery. Homicide is said to have been
committed by reason or on occasion of robbery if, for instance, it was committed:

a. to facilitate the robbery or the escape of the culprit;

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 b. to preserve the possession by the culprit of the loot;
c. to prevent discovery of the commission of the robbery; or
d. to eliminate witnesses in the commission of the crime (People v. Balute, G.R. No. 212932, January
21, 2015, Perlas-Bernabe)

If conspiracy was established when a homicide takes place by reason of or on occasion of the robbery,
all those who took part shall be guilty of the special complex crime of robbery with homicide whether
they actually participated in the killing, unless there is proof that there was an endeavour to prevent
the killing. (Moya Pre-week, pg. 19)

Ordinarily, homicide means killing another person. In sum, the person responsible for the death of the
victim must be the offender. But in the case of People v. Arpa, G.R. No. L-26789, April 25, 1969, the victim
himself, who jumped from boat, is responsible for his own death, and yet, the SC convicted the accused
of robbery with homicide. In other words, death caused by the victim himself is considered as
homicide, which is a component of robbery with homicide. (Campanilla, Pre-week, pg. 13)

In robbery with homicide, it is immaterial that the victim of homicide is a bystander (People v. Barut,
G.R. No. L-42666 March 13, 1979), a responding police (People v. Pelagio, G.R. No. L-16177, May 24, 1967)
or one of the robbers (People v. De Leon, GR No. 179943, June 26, 2009; People vs. Jugueta, G.R. No. 202124,
April 05, 2016).

In robbery with homicide, it is immaterial that victim is killed by the responding police and not by the
robber (People vs. Ombao, G.R. No. L-30492, February 26, 1981). But in attempted robbery with homicide,
the offender must be guilty of both crimes. Hence, attempted robbery with homicide is not committed
where the victim was killed by a co-passenger and not by the robber (People vs. Manalili, G.R. No. 121671,
August 14, 1998).

7. Self-defense under Art. 11 and Battered Woman Syndrome

Elements of Self-defense:

a. Unlawful aggression.
b. Reasonable necessity of the means employed to prevent or repel it.
c. Lack of sufficient provocation on the part of the person defending himself.

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. No. 9262).

Under Section 28 of R.A. No. 9262, Victim-survivors who are found by the courts to be suffering from
battered woman syndrome do not incur any criminal and civil liability, notwithstanding the absence
of any of the elements for justifying circumstances of self-defense under the Revised Penal Code.

The essence of this defense of “Battered Woman Syndrome” as a defense is that battered woman, who
suffers from physical and psychological or emotional distress, is acting under an irresistible impulse to
defend herself although at the time of commission of the crime the batterer had not yet committed
unlawful aggression. That is why “Battered Woman Syndrome” is a defense notwithstanding the

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 absence of any of the elements for justifying circumstances of self-defense such as unlawful aggression
(Section 26 of RA No. 9262).

Three phases of the Battered Woman Syndrome:

a. the tension-building phase;

b. the acute battering incident; and
c. the tranquil, loving or non-violent phase (People v. Genosa, G.R. No. 135981, January 15, 2004).

The basis of the irresistible impulse to make a defense against the batterer is the woman’s experiencing
two battering episodes.

The elements of Battered Woman Syndrome as a defense are as follows:

a. the woman is subjected to cumulative abuse by the victim, with whom she has marital, sexual
or dating relationship; and
b. the cumulative abuse or battery is the act of inflicting physical harm resulting to physical and
psychological or emotional distress.

Since the abuse must be cumulative, there must be at least two episodes involving the infliction of
physical harm. If the first episode is infliction of physical harm and the second episode is verbal abuse,
the accused cannot avail Battered Woman Syndrome as a defense. (Campanilla, Pre-week, pg. 5)

Question: Jack and Jill have been married for seven years. One night, Jack came home drunk.
Finding no food on the table, Jack started hitting Jill only to apologize the following day.

A week later, the same episode occurred – Jack came home drunk and started hitting Jill.

Fearing for her life, Jill left and stayed with her sister. To woo Jill back, Jack sent her floral
arrangements of spotted lilies and confectioneries. Two days later, Jill returned home and decided
to give Jack another chance. After several days, however, Jack again came home drunk. The
following day, he was found dead.

Jill was charged with parricide but raised the defense of "battered woman syndrome."

Would the defense prosper despite the absence of any of the elements for justifying circumstances
of self-defense under the Revised Penal Code? Explain. (BAR 2010)

Suggested answer: Yes, Section 26 of Rep. Act No. 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 for justifying circumstances of self-defense
under the Revised Penal Code. (Esguerra, UP Pre-week)

Question: Dion and Talia were spouses. Dion always came home drunk since he lost his job a couple
of months ago. Talia had gotten used to the verbal abuse from Dion. One night, in addition to the
usual verbal abuse, Dion beat up Talia. The next morning, Dion saw the injury that he had inflicted
upon Talia and promised her that he would stop drinking and never beat her again. However, Dion
did not make good on his promise. Just after one week, he started drinking again. Talia once more

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 endured the usual verbal abuse. Afraid that he might beat her up again, Talia stabbed Dion with a
kitchen knife while he was passed out from imbibing too much alcohol. Talia was charged with the
crime of parricide. (BAR 2015)

a. May Talia invoke the defense of Battered Woman Syndrome to free herself from criminal
liability? Explain.

Suggested answer: No, a single act of battery or physical harm committed by Dion against Talia
resulting to the physical and psychological or emotional distress on her part is not sufficient to avail of
the benefit of the justifying circumstance of “Battered Woman Syndrome”.

The defense of Battered Woman Syndrome can be invoked if the woman with a marital relationship
with the victim is subjected to cumulative abuse or battery involving the infliction of physical harm
resulting to physical and psychological or emotional distress.

Cumulative means resulting from successive addition. In sum, there must be “at least two battering
episodes” between the accused and her intimate partner and such final episode produced in the
battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that
she needed to use force in order to save her life (People v. Genosa, G.R. No. 135981, January 15, 2004).

b. Will your answer be the same, assuming that Talia killed Dion after being beaten up a second
time? Explain.

Suggested answer: No. Talia can now invoke the defense of Battered Woman Syndrome to free herself
from criminal liability for killing her husband since she suffered physical and emotional distress arising
from cumulative abuse or battery. Under Section 26 of R.A.9262, victim survivors of Battered Woman
Syndrome do not incur any criminal or civil liability despite the absence of the requisites of self-
defense. (UST Pre-week, pg. 7)

8. RA 9262 VAWC, Economic Abuse (Support) and Single Dating Relationship

Economic Abuse – it refers to acts that make or attempt to make a woman financially dependent which
includes, but not limited to the following:

a. Withdrawal of financial support or preventing the victim from engaging in any legitimate
profession, occupation, business or activity, except in cases wherein the other spouse or partner
objects on valid, serious and moral grounds as defined by Article 73 of the Family Code;
(Section 3D no. 1 and Section 5e nos. 2 and 4 of RA 9262);
b. Deprivation or threat of deprivation of financial resources and the right to use and enjoyment
of the conjugal, community or property owned in common;
c. Destroying household property;
d. Controlling the victim’s own money or property or solely controlling conjugal money or
property. (Section 3D of RA 9262)

Dating Relationship – it refers to a situation wherein the parties live as husband and wife without the
benefit of marriage or are romantically involved over time and on a continuing basis during the course

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 of the relationship. A casual acquaintance or ordinary socialization between two individuals in a
business or social context is not a dating relationship.

9. RA 9165 (Drugs) Sec 5, 11 and 15, Sec. 98, Sec. 21 (Chain of Custody); People v. Lim

Punishable Acts

Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of

Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Section 5, Article II of RA
9165);
Sale/Sell – Any act of giving away any dangerous drugs and/or controlled precursor and essential
chemical whether for money or any other consideration. (Article I, Section 3[ii] and Article II, Section 5 of
RA 9165)

Trading – Transactions involving the illegal trafficking of dangerous drugs and/or controlled
precursors and essential chemicals using electronic devices such as, but not limited to, text messages,
email, mobile or landlines, two-way radios, internet, instant messengers and chat rooms or acting as a
broker in any of such transactions whether for money or any other consideration. (Article I, Section
3[jj]and Article II, Section 5 of RA 9165)

Possession of any Dangerous Drugs (Section 11, Article II of RA 9165);

Dangerous Drugs – are those listed in the Schedules annexed to the 1961 Single Convention on Narcotic
Drugs, as amended by the 1972 Protocol, and in the 1971 Single Convention on Psychotropic
Substances.

Note: It does not include controlled precursors and essential chemicals. It only involves dangerous
drugs.

Use of Dangerous Drugs (Section 15, Article II of RA 9165);

Use – Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing,
smoking, sniffing, swallowing, drinking or otherwise introducing into the physiological system of the
body, any of the dangerous drugs. (Article I, Section 3[kk] of RA 9165)

A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a
confirmatory test shall be liable under this section.

Note: Section 15 shall not apply to persons tested positive of dangerous drugs if he is also in possession
of the said dangerous drug in the quantity stated in Section 11 of Article II of the same Act. In this case,
Section 11 shall be applicable. (Section 15, Article II of RA 9165)

Limited Applicability of the Revised Penal Code in RA 9165 as amended

General Rule: The provisions of the Revised Penal Code shall not apply to cases covered by RA 9165,
as amended.

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 Exception: When the offender is a minor, the provisions of the Revised Penal Code shall apply. (Section
98 of RA 9165, as amended)

Note: In Section 98 of RA 9165, if the imposable penalty is life imprisonment to death and the offender
is a minor, its penal nomenclature shall be changed to reclusion perpetua to death.

Chain of Custody Rule (Section 21[1], Article II of RA 9165)

It requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that
the matter in question is what the proponent claims it to be. It would include testimony about every
link in the chain, from the moment the item was picked up to the time it is offered into evidence, in
such a way that every person who touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness’ possession, the condition in which
it was received and the condition in which it was delivered to the next link in the chain. (People v. Romy
Lim y Miranda, G.R. No. 231989, Sept. 4, 2018, J. Peralta)

Elements:

a. The seizure and marking, if practicable, of the illegal drug recovered from the accused by the
apprehending officer;
b. The turnover of the seized illegal drug by the apprehending officer to the investigating officer;
c. The turnover of the investigating officer to the forensic chemist for laboratory examination;
and
d. The turnover and submission of the illegal drug from the forensic chemist to the court. (People
v. Lim, ibid.)

Effects of the amendment of Section 21 of RA 9165 by RA 10640

It only requires two witnesses during the inventory and marking who are:

1) An elected public official; and

2) Either a representative from the National Prosecution Service or the media.

If there is difficulty in complying with the mandatory requirement of Section 21 of RA 9165 as

amended, the enforcement officers must state in their sworn statements the justifiable grounds for its
non-compliance as well as the steps taken to preserve the identity and evidentiary value of the seized
or confiscated items.

Non-observance of the prescribed procedures shall not automatically mean that the seizure or
confiscation is invalid or illegal, as long as the law enforcement could justify the same and could prove
that the integrity and the evidentiary value of the seized items are not tainted. (Notice of Resolution of
the Court en banc, People v. Lim issued on Nov. 13, 2018)

10. Acts of Lasciviousness and Sec 5(b), RA 7610

Acts of Lasciviousness (Art. 336, RPC) Lascivious Conduct with a Child (Section
5(b), RA 7610)

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 Elements:

1. That the offender commits any act of

lasciviousness or lewdness; Elements:

2. The said act is committed against a person 1. The offender commits an act of sexual
of either sex; and intercourse or lascivious conduct;

3. It was done under any of the following
circumstances:
 Using force or intimidation;
 The offended party is deprived of
reason or otherwise unconscious;
 Through fraudulent machination or
grave abuse of authority; or
 The offended party is demented;
2. The said act is performed with a child
exploited in prostitution or subjected to
other sexual abuse (e.g. through coercion
or influence of any adult); and
3. The child is under 18 years of age.

Penalty: reclusion temporal medium to reclusion

Penalty: prision correcccional
perpetua.

If the offended party is a minor, it is an act of

The penalty shall be imposed if the offended lasciviousness; however the penalty to be
party is not a minor. (Book II, Reyes, pp. 956-957) imposed shall be governed by Sec. 5b of RA
7610. (Book II, Reyes, p. 956)

11. Plunder and Sec 3(e), RA 3019

Anti-Graft and Corrupt Practices Act

Plunder (RA 7080, as amended)
(Section 3e of RA 3019, as amended)

 Causing any undue injury to any party,

It is committed:
including the Government, or giving any
 By any public officer who, by himself or in
private party any unwarranted benefits,
connivance with members of his family,
advantage or preference in the discharge
relatives by affinity or consanguinity,
of his official, administrative or judicial
business associates, subordinates, or other
functions through manifest partiality,
persons, amasses, accumulates or acquires
evident bad faith or gross inexcusable
ill-gotten wealth through a combination or
negligence.
series of overt or criminal acts as describe in

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 Section 1d of this act in the aggregate
amount of at least 50 million pesos.

 The injured party is the Government or any  The injured party may be a private person
of its subsidiary. aside from the Government.

 The offender may be a public officer or a  The offender must be a public officer
private person. discharging his function whether official,
administrative or judicial.

12. Libel & Cyberlibel

Cyberlibel (RA 10175 or the Cybercrime

Libel (Article 353, RPC)
Prevention Act of 2012)

Elements:

1. There must be an imputation of a crime, or  The same as defamation or libel as defined

of a vice or defect, real or imaginary, or any by the Revised Penal Code.
act, omission, status or circumstance;
 However, if committed though any
2. The imputation must be made publicly; information and communication
technologies, the crime of libel becomes
3. It must be directed to a natural or juridical cyber libel which carry with it a higher
person, or one who is dead; and penalty by one degree. (Section 6 of RA
10175)
4. The imputation must tend to cause
dishonor, discredit or contempt of the
person defamed. (Reyes, Book II, p. 1025)

Venue must be established, which means that The venue is the place where the complainant
the information or complaint must be filed actually resides at the time of the commission
where the defamatory article was printed or of the offense. (Bonifacio v. RTC Makati Branch
published. 149, G.R. No. 184800, May 5, 2010)

13. Impossible Crime of Theft of Unfunded Check

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 Impossible Crime – When the person intending to commit an offense has already performed the acts
for the execution of the same but nevertheless the crime was not produced by reason of the fact that
the act intended was by its nature one of impossible accomplishment or because the means employed
by such person are essentially inadequate to produce the result desired by him. (Article 49, RPC)

A crime committed is impossible if the offense sought to be committed is factually or legally impossible.
(Campanilla Pre-week, pg. 4)

Theft of an unfunded check – It is an impossible crime because it is factually impossible to accomplish

the crime of qualified theft due to the fact that the check is unfunded. (Jacinto v. People, G.R. No. 162540,
July 13, 2009)

Theft of a funded check – It is not an impossible crime even if the accused failed to encash the said
check due to external causes and will be liable for consummated theft because the taking of the property
of another with intent to gain consummates the crime of theft. (People v. Seranilla, G.R. No. L-54090, May
9, 1988)

14. Privileged Mitigating Circumstances

Privileged mitigating circumstances under the RPC

a. When the offender is a minor under 18 years of age (RPC, Art. 68); (BAR 2013, 2014)
b. When the crime committed is not wholly excusable (RPC, Art. 69);
c. When there are two or more mitigating circumstances and no aggravating circumstance, the
court shall impose the penalty next lower to that prescribed by law, in the period that it may
deem applicable, according the number and nature of such circumstances (RPC, Art. 64, par.
5); (BAR 1997)
d. Voluntary release of the person illegally detained within 3 days without the offender attaining
his purpose and before the institution of the criminal action (RPC, Art. 268, par. 3);
e. Abandonment without justification by the offended spouse in case of adultery (RPC, Art. 333,
par. 3); and
f. Concealing dishonor in case of infanticide (RPC, Art. 255, par. 2).

Note: If it is the maternal grandparent who committed the offense to conceal dishonor, the penalty
imposed is one degree lower. If it is the pregnant woman who committed the offense to conceal
dishonor, the penalty imposed is two degrees lower. In case of concealing dishonor by a pregnant
woman in abortion, the imposable penalty is merely lowered by period and not by degree, hence, not
a privileged mitigating circumstance.

Privileged mitigating circumstances contemplated under Art. 69

Incomplete justifying (RPC, Art. 11) and incomplete exempting (RPC, Art. 12) circumstances, provided
that the majority of their conditions are present.

For this article to apply, it is necessary that:

a. Some of the conditions required to justify the deed or to exempt from criminal liability are
lacking,
b. The majority of such conditions are nonetheless present, and

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 c. When the circumstance has an indispensable element, that element must be present in the case
(Regalado, 2007)

Ordinary Mitigating Privileged Mitigating

Can be offset by aggravating circumstances.
Ordinary mitigating circumstances, if not offset,
will operate to reduce the penalty to the
minimum period, provided the penalty is a
divisible one.
Can never be offset by any aggravating
circumstance.
Privileged mitigating circumstances operate to
reduce the penalty by one to two degrees,
depending upon what the law provides. (UST
GN, pg. 39)

15. Proximate Cause (Art.4[1])

Requisites of Art. 4 Par. 1, “committing a felony although the wrongful act done be different from that
which he intended” where greater injury results:

a. That an intentional felony has been committed; and

b. That the wrong done to the aggrieved party be the direct, natural and logical consequence of
the felony committed by the offender (U.S. v. Brobst, G.R. No. 4935, October 25, 1909).

Meaning of “direct, natural and logical consequence”

a. Blow was efficient cause of death;

b. Blow accelerated death; or
c. Blow was proximate cause of death. (UST GN, pg. 9)

Proximate cause

Proximate cause has been defined as that cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and without which the result would not have
occurred (People v. Villacorta, G.R. No. 186412, September 7, 2011).

As a rule, the offender is criminally liable for all the consequences of his felonious act, although not
intended, if the felonious act is the proximate cause of the felony.

Requisites of proximate cause:

a. The direct, natural, and logical cause;

b. Produces the injury or damage;
c. Unbroken by any efficient intervening cause; and
d. Without which the result would not have occurred.

Difference between proximate cause and immediate cause

Immediate cause may be a cause which is far and remote from the consequence which sets into motion
other causes that resulted in the felony.

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 Proximate cause does not require that the offender needs to actually touch the body of the offended
party. It is enough that the offender generated in the mind of the offended party the belief that made
him risk himself.

If a man creates in another person’s mind an immediate sense of danger, which causes such person to
try to escape, and, in so doing, the latter injures himself, the man who creates such a state of mind is
responsible for the resulting injuries (People v. Toling, G.R. L-27097, January 17, 1975). (UST GN, pg. 10)

16. ISLAW

Indeterminate sentence

A sentence with a minimum term and a maximum term of which the court is mandated to impose for
the benefit of a guilty person who is not disqualified to avail therefore, when the maximum
imprisonment exceeds 1 year.

The purpose of the indeterminate sentence law is to avoid prolonged imprisonment because it is
proven to be more destructive than constructive to offenders.

In imposing a prison sentence for an offense punished by the RPC or special penal laws, the court shall
sentence the accused to an indeterminate sentence, which has a maximum and a minimum term based
on the penalty actually imposed.

Imposition of minimum or maximum term

The term minimum refers to the duration of the sentence which the convict shall serve as a minimum
to be eligible for parole. The term maximum refers to the maximum limit of the duration that the
convict may be held in jail. For special laws, it is anything within the inclusive range of prescribed
penalty. Courts are given discretion in the imposition of the indeterminate penalty.

Application of the Indeterminate Sentence Law must be considered when required to solve penalties
under Art. 64 (Rules for the application of penalties which contain three periods). (BAR 2014)

Rules in imposing a penalty under the indeterminate sentence law (BAR 1999, 2005, 2009, 2010, 2013)

When penalty is imposed by RPC:

a. Maximum Term – is that which in view of the attending circumstances could be properly
imposed under the RPC.
b. Minimum Term – is within the range of the penalty next lower to that prescribed by the RPC.

Prescribed penalty is what the penalty is without looking at the circumstances. As opposed to
imposed penalty which takes into account the circumstances.

When penalty is imposed by a Special Penal Law (BAR 1994):

a. Maximum Term – must not exceed the maximum term fixed by said law.
b. Minimum Term – must not be less than the minimum term prescribed by the same. (BAR 2003)
(UST GN, pg. 98)

General Rule: Indeterminate Sentence Law is mandatory in all cases.

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 Exceptions:

1) if sentenced with a penalty of death or life imprisonment;

2) if convicted of treason, conspiracy, proposal to commit treason;
3) if convicted of misprision of treason, sedition, rebellion or espionage;
4) if convicted of piracy;
5) if the offender is a habitual delinquent;
6) those who escaped from prison or evaded sentence;
7) those who violated the terms of conditional pardon of the chief executive;
8) where the maximum term of imprisonment does not exceed 1 year;
9) if convicted by final judgement at the time of the effectivity of Act No. 4103; and
10) if penalized with suspension or destierro. (UST GN, pg. 98)

17. GCTA and Three Fold Rule

Nature of good conduct allowances (Art. 97, RPC, as amended by RA 10592)

Allowances for good conduct are deductions from the term of sentence for good behavior. The good
conduct of any offender qualified for credit for preventive imprisonment pursuant to Article 29 of the
Code, or of any convicted prisoner in any penal institution, rehabilitation or detention center or any
other local jail shall entitle him to the following deductions from the period of his sentence:

a. During the first two years of imprisonment, he shall be allowed a deduction of twenty days for
each month of good behavior during detention;
b. During the third to the fourth year, inclusive, of his imprisonment, he shall be allowed a
deduction of twenty-three days for each month of good behavior during detention;
c. During the following years until the tenth year, inclusive of his imprisonment, he shall be
allowed a deduction of twenty-five days for each month of good behavior during detention;
d. During the eleventh and successive years of his imprisonment, he shall be allowed a deduction
of thirty days (30) for each month of good behavior during detention;
e. At any time during the period of imprisonment, he shall be allowed another deduction of
fifteen days, in addition to numbers one to four hereof, for each month of studying, teaching
or mentoring service time rendered (Art. 97, as amended by RA 10592).

Note: An appeal by the accused shall not deprive him of entitlement to the above allowances for good
conduct. (Art. 97, as amended by RA 10592).

Person granting time allowance (Art. 99, RPC, as amended by RA 10592)

Whenever lawfully justified, the Director of the Bureau of Corrections, the Chief of the Bureau of Jail
Management and Penology and/or the Warden of a provincial. district, municipal or city jail shall
grant allowances for good conduct. Such allowances once granted shall not be revoked (Art. 99 as
amended by RA 10592).

Special time allowance for loyalty of prisoner (Art. 98, RPC, as amended by RA 10592)

It is a deduction of one fifth (1/5) of the period of sentence of a prisoner who, having evaded the service
of his sentence during the calamity or catastrophe mentioned in Art. 158, gives himself up to the
authorities within 48 hours following the issuance of the proclamation by the President announcing

Page 17 of 34
 the passing away of the calamity or catastrophe. A deduction of two-fifths of the period of his sentence
shall be granted in case said prisoner chose to stay in the place of his confinement notwithstanding the
existence of a calamity or catastrophe enumerated in Article 158 of this Code (Art. 98 as amended by
RA 10592). (UST GN, pp. 110-111)

There are three benefits given by the controversial RA No. 10592, to wit:

a. credit of preventive imprisonment;

b. good conduct allowance for preventive imprisonment; and
c. good conduct allowance for imprisonment.

Credit of preventive imprisonment is governed by Article 29 of the Revised Penal Code as amended
by RA No. 10592. Under this provision, offenders who have undergone preventive imprisonment shall
be credited in the service of their sentence except in the following cases: (1) when they are recidivists,
(2) when they have been convicted previously twice or more times of any crime; and (3) when upon
being summoned for the execution of their sentence they have failed to surrender voluntarily.

Good conduct allowance for preventive imprisonment is governed by Articles 29 and 97 of the
Revised Penal Code as amended by RA No. 10592. Under Section 29, the computation of preventive
imprisonment for purposes of immediate release if the accused has undergone preventive
imprisonment for a period equal to the possible maximum imprisonment of the offense charged.
However, this entitlement is subject to a qualifying proviso, which is quoted as follows: “Provided,
finally, That recidivists, habitual delinquents, escapees and persons charged with heinous crimes are
excluded from the coverage of this Act.”

Good conduct allowance for imprisonment is governed by Articles 97 of the Revised Penal Code as
amended by RA No. 10592. Unlike Article 29, Article 97 does not provide an exclusionary or
disqualification clause or qualifying proviso. It seems that one who committed a heinous crime is not
disqualified from the benefit of good conduct allowance.

The word “provided finally” in Article 29 of RPC means that the sentence subsequent to this phrase is
a qualifying proviso. Settled is the rule that a proviso will merely qualify or modify the provision that
immediately preceded it. In People v. Tulugan, G.R. No. 227363, March 12, 2019, it was held that the office
of the proviso qualifies or modifies only the phrase immediately preceding it or restrains of limits the
generality of the clause that it immediately follows. A proviso is to be construed with reference to the
immediately preceding part of the provisions, to which it is attached, and not to the statute itself or the
other sections thereof.

Applying the Tulugan principle, the proviso under Article 29 on “the exclusion of heinous crimes from
the coverage of RA No. 10592” merely qualifies the provision under Article 29 on good conduct
allowance for preventive imprisonment. The qualifying effect of the proviso under Article 29 cannot
extend to the provision under Article 97 on good conduct allowance for imprisonment. (Campanilla Pre-
week, pg. 21)

Three-Fold Rule

Three-fold rule means that the maximum duration of a convict’s sentence shall not be more than three
times the length of time corresponding to the most severe of the penalties imposed upon him but in no
case to exceed 40 years.

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 Application of the Three-Fold Rule

The rule applies if a convict has to serve at least four sentences, continuously.

Note: All the penalties, even if by different courts at different times, cannot exceed three-fold of the
most severe penalty.

Rule if the culprit has to serve 2 or more penalties (Art. 70, RPC)

If the culprit has to serve 2 or more penalties, he shall serve them simultaneously if the nature of the
penalties will so permit. Otherwise, the penalties shall be served successively on the order of their
severity as follows:

a. Death
b. Reclusion perpetua
c. Reclusion temporal
d. Prision mayor
e. Prision correccional
f. Arresto Mayor
g. Arresto Menor
h. Destierro
i. Perpetual absolute disqualification
j. Temporary absolute disqualification
k. Suspension from public office, the right to vote and be voted for, the right to follow profession
or calling
l. Public censure (UST GN, pg. 102)

18. Art 19, PD 1829 and PD 1612

Art. 19, RPC: Accessories (BAR 1992, 1998, 2004, 2008)

Accessories are those who do not participate in the criminal design, nor cooperate in the commission
of the felony, but with knowledge of the commission of the crime, he subsequently takes part in three
ways by:

a. Profiting or assisting the offender to profit by the effects of the crime;

b. Concealing or destroying the body of the crime to prevent its discovery; and

Note: Where the accused misleads the authorities by giving them false information, such act is
equivalent to concealment and he should be held as an accessory.

c. Harboring, concealing or assisting in the escape of the principal of the crime. (BAR 2008)

The accessory comes into the picture when the crime is already consummated, not before the
consummation of the crime.

One cannot be an accessory unless he knew of the commission of the crime; however, he must not have
participated in its commission.

If the offender has already involved himself as a principal or an accomplice, he cannot be held as an
accessory any further even if he performed acts pertaining to an accessory. (UST GN, pg. 77)

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 PD 1829: Obstruction of Justice

While Art. 20 exempts certain persons from criminal liability, for being an accessory, PD 1829 penalizes
the act of any person, without any distinction, who knowingly or willfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal
cases, which is an act of an accessory. Thus, those exempted as accessory to the crime committed under
the Revised Penal Code can still be prosecuted as principals for Obstruction of Justice under PD 1829.
The benefits of the exception provided in Art. 20 of the RPC do not apply to PD 1829 since under Art.
10 of the Revised Penal Code, offenses which are punishable under special laws are not subject to the
provisions of the Code and shall only be supplementary to such laws. PD 1829, being a special law, is
thus controlling, with regard to offenses specially punished.

Accessory charged simultaneously under Art. 19(3) and for violating PD 1829

A person who harbors, conceals or assist in the escape of an author of the crime can be charged
simultaneously as accessory under Art. 19(3) and for violating PD 1829. What the Constitution
prohibits is putting an accused twice in jeopardy for the same offense. (UST GN, pp. 84-85)

PD 1612 (Anti-Fencing Law) vis-à-vis Art. 19(1) of the RPC

Fencing Accessory
Fencing is limited to theft and robbery. The
terms theft and robbery are used as a generic
Not limited in scope.
term to refer to any kind of unlawful taking, not
just theft or robbery.
Mere possession of stolen items creates a
There is no presumption of being an accessory.
presumption of fencing.
It is necessary to prove that the principal
Fencing is a principal crime in itself. As such, it committed the crime. Hence, before an
can stand on its own. There is no need to prove accessory could be held liable, the principal
that one is guilty of theft or robbery. must have been convicted first of the crime
charged.
The penalty is higher than the penalty of an
Penalty is less than that imposed in fencing.
accessory.
Malum prohibitum and therefore there is no need Malum in se and therefore there is a need to
to prove criminal intent. prove criminal intent.
The fence need not be a natural person but may
be a firm, association, corporation or partnership Natural person only.
or other organization.

One who is charged as an accessory under Art. 19(1) may be likewise charged under PD 1612 for the
same act. What is prohibited under the Constitution is the prosecution of the accused twice for the
same offense.

Note: The State may choose to prosecute the offender either under the RPC or PD 1612 although
preference for the latter would seem inevitable considering that fencing is a crime malum prohibitum,

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 and PD 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of
the property (Dizon-Pamintuan v. People). (UST GN pp. 77-78)

19. Complex Crimes, Art. 48

A complex crime may refer to:

a. Compound crime - when a single act constitutes two or more grave or less grave felonies;
b. Complex crime proper - when an offense is a necessary means for committing the other.

The classic example of the first kind is when a single bullet results in the death of two or more persons.
A different rule governs where separate and distinct acts result in a number killed. Deeply rooted is
the doctrine that when various victims expire from separate shots, such acts constitute separate and
distinct crimes.

In a complex crime, two or more crimes are actually committed, however, in the eyes of the law and in
the conscience of the offender they constitute only one crime, thus, only one penalty is imposed.

Question: Can there be complex crime if the violations committed is a felony under the RPC and a
special law?

Answer: No. In Alberto v. CA, 699 SCRA 104, 19 June 2013, Perlas-Bernabe, J., the Supreme Court held
that rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Article 48 of the
Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot
be complexed with an offense penalized by a special law.

In Alberto, the Supreme Court observes that the DOJ charged Gil for Rape in relation to Child Abuse
under Section 5(b), Article III of RA 7610 on account of the December 28, 2001 and April 23, 2002
incidents. Existing jurisprudence, however, proscribes charging an accused for both crimes, rather, he
may be charged only for either.

As held in People v. Pangilinan: If the victim is 12 years or older, the offender should be charged with
either sexual abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d])
of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act
because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to
criminal liability for a single criminal act. (Moya Pre-week, pp. 8-9)

20. Frustrated Theft and Frustrated Rape

The following crime does not have frustrated stage:

a. Rape (People v. Campuhan, G.R. No. 192433, March 30, 2000)

b. Robbery/ Theft (Valenzuela v. People, G.R. No. 160188, June 21, 2007)
c. Libel (Disini v. SOJ, G.R. No. 203335, February 11, 2014) (Arellano Pre-week)

21. Four Forms of Criminal Repetition

a. Recidivist – one who at the time of his trial for one crime, shall have been previously convicted
by final judgment of another crime embraced in the same title of the Revised Penal Code

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 b. Habituality/ Reiteracion – one who had served out of his sentence, and commits a subsequent
crime wherein the previous and the subsequent is not embraced in the same title of the code.
c. Quasi-recidivist – one who commits a felony after having been convicted by final judgment,
before beginning to serve such sentence or while serving the same, shall be punished by the
maximum period of the penalty prescribed by the law for the new felony.
d. Habitual delinquent – one who, within a period of 10 years from the date of his release or last
conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa or
falsification, is found guilty of any of said crimes a third time or oftener. (Ateneo Pre-week)

22. Rape

a. By a man who shall have carnal knowledge of a woman under any of the following circumstances:
a. Through force, threat, or intimidation;
b. When the offended party is deprived of reason or otherwise unconscious;
c. By means of fraudulent machination or grave abuse of authority;
d. When the offended party is under twelve years of age or is demented, even though none of
the circumstances mentioned above be present

b. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit
an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another person. (Ateneo Pre-week)

In rape through sexual intercourse (organ rape or penile rape), there must be evidence to establish
beyond reasonable doubt that the perpetrator’s penis touched the labia of the victim or slid into her
female organ, and not merely stroked the external surface thereof, to ensure his conviction of rape by
sexual intercourse. In rape by sexual assault, the perpetrator commits this kind of rape by inserting his
penis into another person’s mouth or anal orifice, or any instrument or object into the genital or anal
orifice of another person. It is also called "instrument or object rape", also "gender-free rape", or the
narrower "homosexual rape" (People v. Gaduyon, G.R. No. 181473 November 11, 2013).

Mental retardation of the victim, which is an element of rape, cannot be considered if the same is not
alleged in the information (People v. Galia, G.R. No. 222658, August 17, 2016, Perlas-Bernabe)

Statutory Rape is committed by having sexual intercourse with a woman below twelve (12) years of
age regardless of her consent, or lack of it, to the sexual act. Proof of force, threat, or intimidation, or
consent of the offended party is unnecessary as these are not elements of statutory rape, considering
that the absence of free consent is conclusively presumed when the victim is below the age of twelve
(12). The law presumes that the offended party does not possess discernment and is incapable of giving
intelligent consent to the sexual act. (People v. Comboy, G.R. No. 218399, March 2, 2016, Perlas-Bernabe)

Absorption rule - If the accused commits rape and acts of lasciviousness, the latter is absorbed by the
former (People v. Dy, G.R. Nos. 115236-37, January 29, 2002). But the doctrine of absorption is not
applicable to rape through sexual assault. Inserting lighted cigarette into the genital orifice and anal
orifice of the victim and raping her constitutes two counts of rape by sexual assault and rape through
sexual intercourse (People v. Crisostomo, GR No. 196435, January 29, 2014). Inserting the penis into the
mouth of the victim and into her genital orifice constitutes rape through sexual assault and organ rape
(People v. Espera, G.R. No. 202868, October 02, 2013).

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 Variance rule - If the crime charged is rape, but the crime proven is acts of lasciviousness, the accused
will be convicted of the latter because of the variance rule. Acts of lasciviousness is a lesser crime, which
is necessarily included in the charge of rape. If the crime charged is rape through sexual intercourse,
but the crime proven is rape through sexual assault, the accused cannot be convicted of the latter. The
variance rule is not applicable since rape through sexual assault is not necessarily included in the
charge of rape through sexual intercourse. The elements of these two crimes are materially and
substantially different. In such case, the accused will be convicted of acts of lasciviousness, which is
necessarily included in the charge of rape through sexual intercourse (People v. Pareja, GR No. 202122,
January 15, 2014; People v. Cuaycong, G.R. No. 196051, October 02, 2013; People v. CA, G.R. No. 183652,
February 25, 2015).

Withdrawal of consent - Where the woman consents, but then withdraws her consent before
penetration, and the act is accomplished by force, it is rape. (People v. Butiong, G.R. No. 168932, October
19, 2011) But if the woman tacitly consents to have sexual intercourse with the accused, but then
withdraws her consent in the course of sexual intercourse because she felt pain, and the act is not rape.
It would be unfair to convict a man of rape committed against a woman who, after giving him the
impression thru her unexplainable silence of her tacit consent and allowing him to have sexual contact
with her, changed her mind in the middle and charged him with rape (People v. Tionloc, G.R. No. 212193,
February 15, 2017).

Stealthing - Where a woman offers to allow a man to have intercourse with her on certain conditions
and he refuses to comply with the conditions, but accomplishes the act without her consent, he is guilty
of rape. (People v. Butiong, supra)

Stealthing is the removal of condom by the man during sex without consent of the woman. In Germany,
stealthing is a crime, which is different and distinct from rape. In sum, stealthing under German Law
is not within the contemplation of the word “rape.”

In our country, there is no crime of stealthing in the book of statutes. Moreover, stealthing is not
equivalent to rape since lack of consent as an element of this crime pertains to sex and not to the
removal of the condom. Nullum crimen, nulla poena sine lege. However, if the woman expressly and
categorically required the use of condom as a condition to sex, and made it clear that she would not
give her consent to a sexual intercourse without a condom, stealthing may constitute fraudulent
machination, which is a mode of committing rape. But absolute lack of consent must be shown to make
the man liable for rape through fraudulent machination. If the woman failed to resist the continued
sex, or register a strong objection upon knowing that the man already removed the condom from his
penis, rape must be ruled out. Rape is a serious crime punishable by reclusion perpetua. Hence, the
acts committed by the accused must be clearly within the contemplation of the statute on rape;
otherwise, he must be acquitted of rape based on the pro reo principle.

Tenacious resistance - Among the amendments of the law on rape introduced under RA No. 8353 is
Section 266-D, which provides “Any physical overt act manifesting resistance against the act of rape in
any degree from the offended party, or where the offended party is so situated as to render her/him
incapable of giving valid consent, may be accepted as evidence in the prosecution rape” (People v.
Sabadlab, G.R. No. 175924, March 14, 2012). The legislators agreed that Article 266-D is intended to soften
the jurisprudence on tenacious resistance (People v. Dulay, G.R. Nos. 144344-68, July 23, 2002). Indeed,
failure to offer tenacious resistance does not make the submission by the victim to the criminal acts of
the accused voluntary. What is necessary is that the force employed against her be sufficient to

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 consummate the purpose which he has in mind (People v. Olesco, G.R. No. 174861 April 11, 2011; People
v. Nachor, G.R. No. 177779, December 14, 2010). Failure to shout should not be taken against the victim
(People v. Rivera, GR No. 200508, September 04, 2013; People v. Rubio, G.R. No. 195239, March 7, 2012; People
v. Penilla, GR No. 189324, March 20, 2013). It is not necessary for the victim to sustain physical injuries.
She need not kick, bite, hit or scratch the offender with her fingernails to prove that she had been
defensive (People v. Torres, G.R. No. 134766, January 16, 2004). Well-settled is the rule that where the
victim is threatened with bodily injury, as when the rapist is armed with a deadly weapon, such as a
pistol, knife, ice pick or bolo, such constitutes intimidation sufficient to bring the victim to submission
to the lustful desires of the rapist (People v. Dumadag, G.R. No. 176740 June 22, 2011).

Marital rape - Husband can be held liable for marital rape. Article 266-A of RPC uses the term “man”
in defining rape without regard to the rapist’s legal relationship with his victim. Under Article 266-C
of RPC, in case it is the legal husband who is the offender, the subsequent forgiveness by the wife as
the offended party shall extinguish the criminal action. RA No. 8353 has eradicated the archaic notion
that marital rape cannot exist because a husband has absolute proprietary rights over his wife’s body
and thus her consent to every act of sexual intimacy with him is always obligatory or at least, presumed
(People v. Jumawan, G.R. No. 187495, April 21, 2014).

Maria Clara rule - The Maria Clara or women’s honor doctrine is a standard used by the court in
assessing the credibility of a rape victim. Under this principle, women of decent repute, especially
Filipinos, would not publicly admit that she has been sexually abused, unless that is the truth, for it is
her natural instinct to protect her honor. However, the factual setting in 1960 when the "women's
honor" doctrine surfaced in our jurisprudence is that it is natural for a woman to be reluctant in
disclosing a sexual assault. However, the women today have over the years transformed into a strong
and confidently intelligent and beautiful person, willing to fight for her rights. Thus, in assessing the
credibility of a rape victim, the Maria Clara standard should not be used. The testimony of the victim
must be evaluated without gender bias or cultural misconception. It is important to weed out the Maria
Clara notions because an accused may be convicted solely on the testimony of the victim (People v.
Amarela, G.R. Nos. 225642-43, January 17, 2018, the Supreme Court, Third Division). (Campanilla Pre-week,
pp. 31-33)

23. Probation Decree, as amended, Colinares v. People

It is a disposition under which a defendant, after conviction and sentence, is released subject to
conditions imposed by the court and to the supervision of a probation officer. (UST Pre-week)

A person can apply for probation after conviction and sentencing of a defendant for a probationable
penalty and upon application within the period of perfecting an appeal, and if the defendant has
perfected the appeal from the judgment of conviction, no application for probation shall be entertained
or granted (Sec. 4 of Probation Law).

Disqualified to avail the benefits of the probation law:

a. Sentenced to serve a maximum term of imprisonment of more than six (6) years;
b. Convicted of any crime against the national security; (Sec. 9, RA 10707)

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 c. Who have previously been convicted by final judgment of an offense punished by
imprisonment of more than six (6) months and one (1) day and/or a fine of more than one
thousand pesos (P1,000.00); (Sec. 9, RA 10707)
d. Who have been once on probation under the provision of this Decree;
e. Who are already serving sentence at the time the substantive provisions of this Decree became
applicable pursuant to Section 33 hereof;
f. If he appeals the judgment or conviction, (however see Colinares v. People, G.R. No. 182748,
December 13, 2011); or
Exception: A child in conflict with the law can appeal anytime
g. If he is convicted of violation of Election Offenses
h. If he is convicted of Drug Trafficking or Drug Pushing (Sec. 24, R.A. 9165)

Note: In multiple prison terms, those imposed against the accused found guilty of several offenses
should not be added up, and their sum total should not be determinative of his disqualification from
probation since the law uses the word “maximum” not “total” term of imprisonment (Francisco v. CA,
et. Al, G.R. No. 108747, April 6, 1995).

Question: 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”?

Answer: 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.”

The application for probation based on the modified decision shall be filed in the trial court where the
judgment of conviction imposing a non-probationable penalty was rendered, or in the trial court where
such case has since been re-raffled. In a case involving several defendants where some have taken
further appeal, the other defendants may apply for probation by submitting a written application and
attaching thereto a certified true copy of the judgment of conviction.

The trial court shall, upon receipt of the application filed, suspend the execution of the sentence
imposed in the judgment.

This notwithstanding, the accused shall lose the benefit of probation should he seek a review of the
modified decision which already imposes a probationable penalty.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. The
filing of the application shall be deemed a waiver of the right to appeal.

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 An order granting or denying probation shall not be appealable. (R.A. 10707 Section 1, amending Section
4 of PD No. 968, Approved last November 26, 2015)

Alternative answer: What is clear is that, had the RTC done what was right and imposed on Arnel the
correct penalty of two years and four months maximum, he would have had the right to apply for
probation. Arnel did not appeal from a judgment that would have allowed him to apply for probation.
He did not have a choice between appeal and probation. While it is true that probation is a mere
privilege, the point is not that Arnel has the right to such privilege; he certainly does not have. What
he has is the right to apply for that privilege. If the Court allows him to apply for probation because of
the lowered penalty, it is still up to the trial judge to decide whether or not to grant him the privilege
of probation, taking into account the full circumstances of his case (Colinares v. People, G.R. No. 182748,
December 13, 2011). (UST Pre-week, pp. 17-18)

24. Aggravating Circumstances (discussion based on Esguerra, UP Pre-week)

Aggravating circumstances are those which, if attendant in the commission of the crime, serve to
increase the penalty without, however, exceeding the maximum of the penalty provided by law for the
offense.

They are based on the greater perversity of the offender manifested in the commission of the felony as
shown by:
a. motivating power itself;
b. the place of commission;
c. the means and ways employed;
d. the time; or
e. the personal circumstances of the offender, or of the offended party.

Four Kinds of Aggravating Circumstances:

a. Generic – Those that can generally apply to all crimes, i.e., nos. 2, 3 (dwelling), 4, 5, 6, 9, 10, 14,
18, 19, and 20 except “by means of motor vehicles.”
b. Specific – Those that apply only to particular crimes. Nos. 3 (except dwelling), 15, 16, 17 and
21.
c. Qualifying –Those that change the nature of the crime. Art. 248 enumerates the qualifying AC
which qualify the killing of person to murder.
d. Inherent – Those that must accompany the commission of the crime.

Art. 14, par. 1. - That Advantage be taken by the offender of his public position.

The mere fact that the offender is a public officer or employee is a “SPECIAL aggravating circumstance”
in violation of R.A. No. 7610 (R.A. No. 7610, Sec. 31) and a “QUALIFYING circumstance” in violation
of R.A. No. 9208 or the Anti-Trafficking in Persons Act of 2003 (R.A. No. 9208, Sec. 6).

Art. 14, par. 2. - That the crime be committed in contempt or with insult to the public authorities.

a. That the public authority is engaged in the exercise of his functions.

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 b. That he who is thus engaged in the exercise of his functions is not the person against whom
the crime is committed.
c. The offender knows him to be a public authority.
d. His presence has not prevented the offender from committing the criminal act.

Art. 14, par. 3 (1) - With insult or in disregard of the respect due the offended party on account:

a. of the rank of the offended party

b. of the age of the offended party
c. of the sex of the offended party

This aggravating circumstance is not applicable to the following:

a) When the offender acted with passion and obfuscation.

b) When there exists a relationship between the offended party and the offender.
c) When the condition of being a woman is indispensable in the commission of the crime i.e.
parricide, rape, etc.

Art. 14, par. 3 (2) That the crime be committed in the dwelling of the offended party

Dwelling – building or structure, exclusively used for rest and comfort.

Art. 14, par. 4. - That the act be committed with (1) abuse of confidence, or (2) obvious
ungratefulness.

Abuse of confidence
a. That the offended party had trusted the offender.
b. That the offender abused such trust by committing a crime against the offended party.
c. That the abuse of confidence facilitated the commission of the crime.

Obvious ungratefulness - The ungratefulness must be obvious–manifest and clear.

Art. 14, par. 5. - That the crime be committed in the palace of the chief executive or in his presence,
or where public authorities are engaged in the discharge of their duties, or in a place dedicated to
religious worship.

If it is the Malacañang palace or a church, it is aggravating, regardless of whether State or official or

religious functions are being held.

Art. 14, par. 6. - That the crime be committed (1) in the nighttime, or (2) in an uninhabited place, or
(3) by a band, whenever such circumstances may facilitate the commission of the offense.

Whenever more than three armed malefactors shall have acted together in the commission of an
offense, it shall be deemed to have been committed by a band.

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 If the aggravating circumstances of nighttime, uninhabited place or band concur in the commission of
the crime, all will constitute one aggravating circumstance only as a general rule although they can be
considered separately if their elements are distinctly perceived and can subsist independently,
revealing a greater degree of perversity.

Nighttime, uninhabited place or band is aggravating:

a. When it facilitated the commission of the crime; or
b. When especially sought for by the offender to insure the commission of the crime or for the
purpose of impunity; or
c. When the offender took advantage thereof for the purpose of impunity.

Uninhabited place
Test: Whether or not in the place of the commission of the offense, there was a reasonable possibility
of the victim receiving or securing aid from third persons. (People v. Desalisa, G.R. No. 95262, 4 January
1994)

Crime was committed by a band

Whenever more than 3 armed malefactors shall have acted together in the commission of an offense, it
shall be deemed to have been committed by a band.

The requisite four (4) armed persons contemplated in this circumstances must all be principals by direct
participation who acted together in the execution of the acts constituting the crime (Gamara v. Valero,
G.R. No. L-36210, 25 June 1973).

Art. 14, par. 7. - That the crime be committed on the occasion of a conflagration, shipwreck,
earthquake, epidemic or other calamity or misfortune.

The reason for the existence of this AC is found in the debased form of criminality in one who, in the
midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking
advantage of their misfortune to despoil them. The offender must take advantage of the calamity or
misfortune.

“Or other calamity or misfortune” refers to other conditions of distress similar to “conflagration,
shipwreck, earthquake or epidemic.”

Art. 14, par. 8. - That the crime be committed with the aid of armed men or persons who insure or
afford impunity.

a. That the armed men or persons took part in the commission of the crime, directly or indirectly.
b. That the accused availed himself of their aid or relied upon them when the crime was
committed.

Art. 14, par. 9. - That the accused is a recidivist.

a. That the offender is on trial for an offense;

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 b. That he was previously convicted by final judgment of another crime;
c. That both the first and the second offenses are embraced in the same title of the Code;
d. That the offender is convicted of the new offense.

Art. 14, par. 10. - That the offender has been previously punished by an offense to which the law
attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty,
otherwise known as habituality or reiteracion.

a. That the accused is on trial for an offense;

b. That he previously served sentence for another offense to which the law attaches an equal or
greater penalty, or for 2 or more crimes to which it attaches lighter penalty than that for the
new offense; and
c. That he is convicted of the new offense.

Art. 14, par. 11. - That the crime be committed in consideration of a price, reward, or promise.

When this AC is present, there must be two (2) or more principals, the one who gives or offers the price
or promise and the one who accepts it, both of whom are principals—to the former, because he directly
induces the latter to commit the crime, and the latter because he commits it. When this AC is present,
it affects not only the person who received the price or reward, but also the person who gave it.

Art. 14, par. 12. - That the crime be committed by means of inundation, fire, poison, explosion,
stranding of a vessel or intentional damage thereto, derailment of a locomotive, or by the use of any
other artifice involving great waste and ruin.

Unless used by the offender as a means to accomplish a criminal purpose, any of the circumstances in
paragraph 12 cannot be considered to increase the penalty or to change the nature of the offense. When
another AC already qualifies the crime, any of these AC’s shall be considered as generic aggravating
circumstance only.

Art. 14, par. 13. - That the act be committed with evident premeditation.

Evident premeditation implies a deliberate planning of the act before executing it. The essence of
premeditation is that the execution of the criminal act must be preceded by cool thought and reflection
upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a
calm judgment (People v. Alinao, G.R. No. 191256, 18 September 2013).

a. The time when the offender determined to commit the crime;

b. An act manifestly indicating that the culprit has clung to his determination; and
c. When the crime was carefully planned by the offenders; and
d. When the offenders previously prepared the means which they considered adequate to carry
it out.

Art. 14, par. 14. - That craft, fraud or disguise be employed.

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 Craft – involves intellectual trickery and cunning on the part of the accused. It is employed as a scheme
in the execution of the crime. (People v. Labuguen, G.R. No. 127849, 9 August 2000, 337 SCRA 488)

Fraud – insidious words or machinations used to induce the victim to act in a manner which would
enable the offender to carry out his design. (People v. Labuguen, G.R. No. 127849, 9 August 2000, 337
SCRA 488)

Art. 14, par. 15. - That (1) advantage be taken of superior strength, or (2) means be employed to
weaken the defense.

Abuse of superior strength - There is abuse of superior strength when the perpetrators of a crime
deliberately used excessive force, thereby rendering the victim incapable of defending himself. The
notorious inequality of forces creates an unfair advantage for the aggressor (People v. Credo, G.R. No.
197360, 3 July 2013).

Means employed to weaken defense - This circumstance is applicable only to crimes against persons
and sometimes against person and property, such as robbery with physical injuries or homicide. This
aggravating circumstance is absorbed in treachery.

Art. 14, par. 16. - That the act be committed with treachery (alevosia).

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

Art. 14, par. 17. - That means be employed or circumstances brought about which add ignominy to
the natural effects of the act.

Ignominy is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the
material injury caused by the crime. (People v. Acaya, G.R. No. L-72998, 29 July 1988).

The means employed or the circumstances brought about must tend to make the effects of the crime
more humiliating or to put the offended party to shame.

Art. 14, par. 18. - That the crime be committed after an unlawful entry.

There is unlawful entry when an entrance is effected by a way not intended for the purpose.

Unlawful entry must be a means to effect entrance and not for escape.

In People v. Galapia (1978), it was ruled that there was unlawful entry because of the destruction of the
glass blades or jalousies of a window in order to gain entrance to the house.

There is no unlawful entry when the door is broken and thereafter the accused made an entry thru the
broken door. The breaking of the door is covered by paragraph 19.

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 Art. 14, par. 19 – That as a means to the commission of a crime a wall, roof, floor, door, or window
be broken.

To be considered as an AC, breaking the door must be utilized as a means to the commission of the
crime.

It is only aggravating in cases where the offender resorted to any of said means TO ENTER the house.
If the wall, etc. is broken in order to get out of the place, it is not aggravating.

Art. 14, par. 20. - That the crime be committed (1) with the aid of persons under fifteen years of age
or (2) by means of motor vehicles, motorized watercraft, airships, or other similar means. (as
amended by RA 5438).

a. With the aid of persons under 15 years of age; or

b. By means of a motor vehicle

It is aggravating where the accused used the motor vehicle in going to the place of the crime,
in carrying away the effects thereof, and in facilitating their escape. The availment by the
accused of the motor vehicle must have been for the purpose of ensuring the success of their
criminal enterprise.

c. “or other similar means”

The expression should be understood as referring to MOTORIZED vehicles or other efficient
means of transportation similar to automobile or airplane.

Art. 14, par. 21. - That the wrong done in the commission of the crime be deliberately augmented
by causing other wrong not necessary for its commissions.

Cruelty
For cruelty to exist, it must be shown that the accused enjoyed and delighted in making his victim
suffer. The contemplation of the law requires deliberate prolongation of the victim’s suffering. e.g.
Victim was alive while the sadistic acts were being committed against him by the accused.

Requisites:
a. That the injury caused be deliberately increased by causing other wrong;
b. That the other wrong be unnecessary for the execution of the purpose of the offender.

25. Voluntary surrender and voluntary confession of guilt

Art. 13, par. 7. That the offender had voluntarily surrendered himself to a person in authority or his
agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of
the evidence for the prosecution.

Requisites of voluntary surrender:

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 a. That the offender had not been actually arrested;
b. That the offender surrendered himself to a person in authority or to the latter’s agent; and
c. That the surrender was voluntary.

Requisites of plea of guilty:

a. That the offender spontaneously confessed his guilt;

b. That the confession of guilty was made in open court, that is, before the competent court that
is to try the case; and
c. That the confession of guilt was made prior to the presentation of evidence for the prosecution.

Question: How can voluntary surrender be considered as a mitigating circumstance in the

commission of a crime?

Answer: A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit
himself unconditionally to the authorities either because: (a) he acknowledges his guilt; or (b) he wishes
to save them the trouble and expense necessarily incurred in his search and capture. (People v. Agacer,
662 SCRA 461, 14 December 2011.) (Moya Pre-week, pp. 11-12)

Question: What is the essence of voluntary surrender?

Answer: To save the authorities the trouble and expense that may be incurred for his search and
capture is the essence of voluntary surrender. The presentation by appellant of himself to the police
officer on duty in a spontaneous manner is a manifestation of this intent. (People v. Sales, 658 SCRA 367,
3 October 2011.) (Moya Pre-week, pg. 12)

Mitigating circumstance in imprudence case - According to Justice Perlas-Bernabe, the rules on the
attendance of modificatory circumstances e.g., the mitigating circumstance of voluntary surrender
should be considered in reckless imprudence resulting in homicide (Curammeng v. People, G.R. No.
219510, November 14, 2016).

However, this is not a controlling rule. Under Article 365 of the RPC, in the imposition of penalties for
imprudence and negligence, the court shall exercise their sound discretion, without regard to the rules
prescribed in Article 64 (on appreciation of mitigating circumstances).

Thus, court shall not consider mitigating circumstance of voluntary confession in applying the penalty
for imprudence or negligence in its minimum period (People v. Agito, G.R. No. L-12120, April 28, 1958
and Mariano v. People, G.R. No. 178145, July 07, 2014). Neither shall the court consider the special
mitigating circumstance of confession and surrender in reducing the penalty for this crime one degree
lower (People v. Medroso, Jr. G.R. No. L-37633, January 31, 1975). (Campanilla Pre-week, pg. 19)

26. Qualified Human Trafficking

Under Section 6 of R.A. 9208, the following are considered as qualified trafficking:

a. When the trafficked person is a child;

b. When the adoption is effected through Republic Act No. 8043, otherwise known as the "Inter-
Country Adoption Act of 1995" and said adoption is for the purpose of prostitution,

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 pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt
bondage;
c. When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed
by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating
with one another. It is deemed committed in large scale if committed against three (3) or more
persons, individually or as a group;
d. When the offender is an ascendant, parent, sibling, guardian or a person who exercises
authority over the trafficked person or when the offense is committed by a public officer or
employee;
e. When the trafficked person is recruited to engage in prostitution with any member of the
military or law enforcement agencies;
f. When the offender is a member of the military or law enforcement agencies; and
g. When by reason or on occasion of the act of trafficking in persons, the offended party dies,
becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV)
or the Acquired Immune Deficiency Syndrome (AIDS).

27. Malversation and Estafa non-bailable when amount of misappropriation exceeds 8.8 Million.
(Esguerra, UP Pre-week)

People v. Valdez
G.R. No. 216007-09, 8 December 2015
(Cf. Section 40 of R.A. No. 10951, amending Section 217 of the Revised Penal Code: if misappropriation
of public funds or property exceeds P8.8 Million, the penalty is reclusion perpetua and non-bailable)

FACTS: Luzviminda S. Valdez, a former mayor of Bacolod City was charged with 4 counts of violation
of Section 3 (e) of R.A. No. 3019 and 4 counts of the complex crime of Malversation of Public Funds
thru Falsification of Official/Public Documents under Articles 217 and 171, in relation to Article 48 of
the RPC. State Auditors of the Commission on Audit Region VI conducted a post-audit of the
disbursement vouchers (D.V.) of the Bacolod City government.

Based on the verification conducted in the establishments that issued the official receipts, it was alleged
that the cash slips were altered/falsified to enable Valdez to receive reimbursement from the
government the total amount of P279,150.00.

The Office of the Ombudsman recommended “no bail” for the charge of complex crime of Malversation
of Public Funds thru Falsification of Official/Public Documents

While Valdez was still at-large, she filed a Motion to Set Aside No Bail Recommendation and to Fix the
Amount of Bail. Thereafter, a warrant of arrest was issued against Valdez, causing her to subsequently
file an Urgent Supplemental Motion to the Motion to Set Aside No Bail Recommendation and to Fix
the Amount of Bail with Additional Prayer to Recall/Lift Warrant of Arrest.

Valdez was granted bail in the amount of P200,000.00 for each offense charged.

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 ISSUE: Whether an accused who is charged with the complex crime of Malversation of Public Funds
thru Falsification of Official/Public Documents involving an amount that exceeds P22,000.00 is entitled
to bail as a matter of right.

RULING: Yes, the appropriate rule is to grant bail as a matter of right to an accused who is charged
with a complex crime of Malversation of Public Funds thru Falsification of Official/Public Documents
involving an amount that exceeds P22,000.00

Following Temporada, for the complex crime of Malversation of Public Funds thru Falsification of
Official/Public Documents involving an amount that exceeds P22,000.00, the "prescribed penalty" is
reclusion temporal in its maximum period to reclusion perpetua. After trial, should the commission of
such crime be proven by the prosecution beyond reasonable doubt, the "imposable penalty" is reclusion
perpetua in view of the RPC mandate that the prescribed penalty of reclusion temporal maximum to
reclusion perpetua shall be applied in its maximum.

The falsification, which is the means used to commit the crime of malversation, is in the nature of a
generic aggravating circumstance that effectively directs the imposition of the prescribed penalty in its
maximum period. The phrases "shall be applied" and "shall impose," found in Articles 63 and 64,
respectively, of the RPC, are of similar import as the phrase "shall be imposed" found in Article 48.
Both Articles 63 and 64 refer to the penalty to be imposed after considering the aggravating or
mitigating circumstance/s. Finally, the "penalty actually imposed" is still reclusion perpetua,
considering that the ISL finds no application as the penalty is indivisible.

To note, Article 48 of the RPC on complex crimes does not change the nature of the constituent offenses;
it only requires the imposition of the maximum period of the penalty prescribed by law. When
committed through falsification of official/public documents, the RPC does not intend to classify
malversation as a capital offense. Otherwise, the complex crime of Malversation of Public Funds thru
Falsification of Official/Public Documents involving an amount that exceeds P22,000.00 should have
been expressly included in R.A. No. 7659. If truly a non-bailable offense, the law should have already
considered it as a special complex crime like robbery with rape, robbery with homicide, rape with
homicide, and kidnapping with murder or homicide, which have prescribed penalty of reclusion
perpetua.

Observe that bail is not a matter of right in plunder committed through malversation of public funds,
but the aggregate amount or total value of ill-gotten wealth amassed, accumulated or acquired must
be at least P50,000,000.00. In contrast, an accused who is alleged to have committed malversation of
public funds thru falsification of official/public documents, which is not a capital offense, is no longer
entitled to bail as a matter of right if the amount exceeds P22,000.00, or as low as P22,000.0l. Such
distinction is glaringly unfair and could not have been contemplated by the law.

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