2021 UPDATES ON CRIMINAL LAWS WITH LEONEN CASES

BY JUDGE MARLO B. CAMPANILLA

Note: The dissenting opinions of Justice Leonen are included in these materials since cases with his
dissent may be a source of bar examination questions. However, the dissenting opinions of Justice
Leonen are not controlling principles. For purpose of the bar exam, the majority opinions should be
followed.

TERRITORIALITY - For purpose of venue under the Rules of Criminal Procedure and territoriality
principle in Article 2 of the Revised Penal Code, the place of commission of the criminal act and the
place of occurrence of the effect of such act, which is an element of the offense, shall be considered.
If one pulled the trigger of his gun in Quezon City and hit the victim in City of Manila, who died as a
consequence, Quezon City and City of Manila, which are the places of commission of the criminal act
and the occurrence of the criminal effect, are proper venues. If the psychological violence consisting
of marital infidelity punishable under RA No. 9262 is committed in Singapore but the psychological
effect occurred in the Philippines since the wife of the respondent, who suffered mental anguish, is
residing in the Philippines, our court can assume jurisdiction (see: AAA vs. BBB, G.R. no. 212448,
January 11, 2018). However, if the commission of the criminal act consummates the crime and the
effect thereof is not an element thereof, the place of occurrence of the effect shall not be considered
for purpose of venue and territoriality rule. Bigamy committed in Singapore is beyond the jurisdiction
of our court although the offended spouse is residing in the Philippines since the psychological effect
of bigamy to her is not an element thereof.

Convention of the law of the sea - Under the Convention on the Law of the Sea, the flag state of a
foreign merchant vessel passing through the 12-mile territorial sea of another state has jurisdiction
over crimes committed therein. However, a coastal state such as the Philippines can exercise
jurisdiction over any crime committed on board such ship in the following cases: (1) if its
consequences extend to the coastal State; (2) if it disturbs the peace of the country or the good order
of the territorial sea; (3) if the ship master or a diplomatic or consular officer of the flag State
requested assistance from the local authorities; or (4) if it is for the suppression of traffic in narcotic
drugs or psychotropic substances. Murder or serious physical injuries committed in a foreign vessel
anchored in a Philippine port against a passenger thereof is within the jurisdiction of the Philippine
court since this crime disturb the peace of the country.

Regime of islands - Under the principle of territoriality, the court has also jurisdiction over crime
committed in Kalayaan Islands or Scarboruogh Shoal because the Baseline Law (RA No. 9522)
declares that the Philippines exercise sovereignty and jurisdiction over it.

200-mile exclusive economic zone - The Philippines has no sovereignty over the 200-mile exclusive
economic zone. Under the convention of the law of the sea, the Philippines has sovereign right to fish
and to exploit the natural resources in the zone. This sovereign right is not equivalent to sovereignty.
Under the convention, foreign states have the freedom of navigation and overflight over the
exclusive economic zone of the Philippines. Freedom of navigation and overflight cannot be
exercised in a place where a State has sovereignty such as such its 12-mile territorial water. Under
the convention, the Philippines has limited jurisdiction over crimes committed within the exclusive
economic zone such as those involving fiscal, custom, immigration, health and safety. A State has
absolute jurisdiction over crimes committed in a territory over which it has sovereignty subject only
to a few exceptions under international laws. The recognition of freedom of navigation and overflight
and the limited jurisdiction over crimes committed in the exclusive economic zone militate against
the concept of sovereignty.

If a Chinese fishing vessel deliberately bumped a Filipino vessel in the West Philippines Sea covered
by the exclusive economic zone of the Philippines, and as a consequence, several Filipino fishermen
died, the Philippines’s jurisdiction over the crime of murder cannot be based on the theory that the
Philippines has sovereignty over the zone. Other principles must be used to justify its jurisdiction
over murder committed within the zone such as flag state rule or universality principle.

PRESIDENTIAL IMMUNITY - Under Article 14 of the Civil Code, penal laws shall be obligatory upon all
who live or sojourn in the Philippine territory. This is the generality principle. Hence, a person
regardless of his citizenship, religion, political position or any other status can be criminally
prosecuted and convicted as long as he is living or sojourning in the territory of the Philippines.

Under the US Constitution, American citizen has the right to bear firearms. Even though an American
citizen is in possession of US license to carry firearm, he can be prosecuted for illegal possession of
loose firearm if a failed to obtain permit from PNP to carry it. RA No. 105911 on loose firearm is
obligatory to him regardless of his foreign characteristic. (People v. Galacgac, C.A., 54 O.G. 1027) The
American constitutional provision on firearm is not operative in the Philippines.

However, penal laws shall not be obligatory upon a person, who enjoys criminal immunity from suit.
In October 21, 2015, a Chinese diplomat and her husband killed two Chinese diplomats in Cebu. The
Philippines authorities did not prosecute the killers for murders because of diplomatic immunity
protected by the Vienna Convention on Diplomatic Relations. The case was referred to China. They
will be prosecuted under Chinese Law.

Under the Section 7, Article VII of the 1973 Constitution, the President shall be immune from suit
during his tenure. However, there is no provision on presidential immunity under the 1987
Constitution. But despite the present Constitution has not adopted the rule on presidential immunity
under the Marcos Constitution, case law or jurisprudence recognizes this immunity. Because of this
immunity, penal laws are not obligatory to the President.

The President of the Philippines is entitled to immunity from suit subject to the following conditions:
(1) the immunity has been asserted; (2) during the period of his incumbency and tenure; and (3) the
act constituting the crime is committed in the performance of his duties. Presidential immunity will
assure the exercise of presidential duties and functions free from any hindrance or distraction,
considering that the Chief Executive is a job that demands undivided attention. (Estrada v. Desierto,
G.R. Nos. 146710-15, March 2, 2001)

In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court further held that the immunity of the
President from civil damages covers only "official acts." Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones where it held that the US President's
immunity from suits for money damages arising out of their official acts is inapplicable to unofficial
conduct. Thus, non-function related crimes such as rape, robbery, and kidnapping are not covered by
the immunity.

During the period of his incumbency and tenure, President Aquino cannot be charged with reckless
imprudence resulting in multiple homicides in connection with the Mamasapano incident where 44
SAF members were killed because of his presidential immunity. His decisions concerning the handling
of the police operation leading to the tragic event are official acts. However, after the tenure of the
President, he can be criminally charged since the presidential immunity is not anymore invocable.
But, in Nacino v. Office of the Ombudsman, G.R. Nos. 234789-91, October 16, 2019, the Supreme
Court found no probable cause to charge President Aquino for reckless imprudence resulting in
multiple homicides in connection with the Mamasapano incident. It was held that Aquino
participated in the planning of Oplan Exodus to arrest Marwan and Usman by approving the
suggested alternative date of execution and ordering the increase in the number of troops and
coordination with the AFP. However, these acts barely qualify Aquino as an active player in the entire
scheme of the operations, more so point to any criminal negligence on his part.

Vice-presidential immunity - It is submitted that a Vice President is not immune from criminal
prosecution. The job of the Vice President, unlike the head of the executive department, does not
demand undivided attention. Hence, the circumstance, on which the presidential immunity is based,
is not obtaining if the position is vice-presidential.

Pacifico Agabin, former dean of the University of the Philippines College of Law and an expert on the
Constitution said that the vice president is not immune from suit. The Constitution does not
guarantee the vice president’s immunity, he said: “It’s only the President who is immune [from suit]
and that is based on tradition, because he is busy handling affairs of the state. But that cannot be
said for the vice president.” Fr Joaquin Bernas SJ, one of the framers of the 1987 Constitution, also
categorically said that Binay is not covered by executive immunity. “No, the vice president is not
immune…The Constitution doesn’t say he is immune”. (See: Rappler article entitled Vice-president
does not enjoy immunity published on June 5, 2015)

Some experts are saying that criminally prosecuting a vice-president will violate Section 2 of Article XI
of the Constitution, which mandates that the Vice President may be removed from office only
through an impeachment proceeding. It is submitted however that there is no constitutional
violation since in case of conviction, he can function as Vice President while serving sentence in
prison. However, accessory penalty of disqualification, which involved removal from office, is not
implementable since the enforcement thereof will offend the impeachment provision.

MALA IN SE AND MALA PROHIBITA - Criminal law has long divided crimes into acts wrong in
themselves called "acts mala in se," and acts which would not be wrong but for the fact that positive
law forbids them, called “acts mala prohibita." This distinction is important with reference to the
intent with which a wrongful act is done. The rule on the subject is that in acts mala in se, the intent
governs, but in acts mala prohibita, the only inquiry is, has the law been violated? When an act is
illegal, the intent of the offender is immaterial. (Estrella vs. People, G.R. No. 212942, June 17, 2020)

To classify a crime as malum in se or malum prohibitum, the nature thereof and the law that
punishes it must be considered.

1. Intentional felony — Intentional felony under the Revised Penal Code is committed by
means of dolo. Since dolo or criminal intent is an element of intentional felonies, they are mala in se.
However, there is an exception; technical malversation is an intentional felony, and yet, the Supreme
Court declared it as malum prohibitum.

In Ysidoro v. People, G.R. No. 192330, November 14, 2012, the mayor, who applied 10 boxes of food
appropriated for feeding program to the beneficiaries of shelter assistance program, is liable for
technical malversation. Mayor’s act, no matter how noble or miniscule the amount diverted,
constitutes the crime of technical malversation. Criminal intent is not an element of technical
malversation. The law punishes the act of diverting public property earmarked by law or ordinance
for a particular public purpose to another public purpose. The offense is malum prohibitum, meaning
that the prohibited act is not inherently immoral but becomes a criminal offense because positive
law forbids its commission based on considerations of public policy, order, and convenience. It is the
commission of an act as defined by the law and not the character or violated. Hence, malice or
criminal intent is completely irrelevant. Dura lex sed lex.

2. Offense under special law – If the offense punishable under special law is not inherently
wrong in nature, it shall be classified as malum prohibitum. The following offenses under special laws
are mala prohibita for not being inherently evil in character: violation of BP Blg. 22 (Amada vs.
People, G.R. No. 177438, September 24, 2012); Illegal recruitment (People vs. Sison, G.R. No. 187160,
August 9, 2017); crimes involving dangerous drugs (Pang vs. People, G.R. No. 176229, October 19,
2011); and possession of loose firearms (People vs. Peralta, G.R. No. 221991, August 30, 2017).

If the offense punishable under special law is inherently evil, there are two views on the standard in
classifying a crime as malum in se or malum prohibitum.

First view - The first view is that if the offense is punishable under special law, it will be treated as
malum prohibitum.

Fencing is a concept substantially similar to that of theft or robbery committed by an accessory. Same
as theft or robbery committed by an accessory, fencing is wrong in character. However, since fencing
is punishable under special law, the Supreme Court in Cahulugan vs. People, G.R. No. 225695, March
21, 2018 and Estrella vs. People, G.R. No. 212942, June 17, 2020 declares it as malum prohibitum.

Hazing where the victim died or was raped is for obvious reason evil in nature. However, the
congressional deliberation shows that the legislators considered hazing as malum prohibitum.
Because of the legislative treatment of hazing as malum prohibitum, the Supreme Court in Villareal v.
People, G.R. No. 151258, February 1, 2012 declared it as malum prohibitum.

Sexual harassment is wrong in nature. However, in Escandor vs. People, G.R. No. 211962, July 06,
2020, the Supreme Court through Justice Leonen declared sexual harassment as malum prohibitum
since RA No. 7877 is a special criminal statute. In this case, the defense of respondent that he never
intended to violate RA No. 7877 was rejected. It was held that in prosecuting an offender for sexual
harassment, intent is immaterial. Mere commission is sufficient to warrant a conviction. Even
without intent, sexual harassment is penalized. His attempt to kiss petitioner was a flagrant disregard
of a customary rule that had existed since time immemorial — that intimate physical contact
between individuals must be consensual. Respondent's defiance of custom and lack of respect for
the opposite sex were more appalling because he was a married man. Respondent's act showed a
low regard for women and disrespect for petitioner's honor and dignity.

Second view - The second view is that even although the offense is punishable under special law, if
the same is inherently evil it will be treated as malum in se.

In Napoles vs. Sandiganbayan, G.R. No. 224162, November 7, 2017, the legislative declaration in RA
No. 7659 that the crime of plunder under RA No. 7080 is a heinous offense implies that it is a malum
in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se
and it does not matter that such acts are punished in a special law, especially since in the case of
plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions
for plunder as though they are mere prosecutions for violations of BP Blg. 22 or of an ordinance
against jaywalking, without regard to the inherent wrongness of the acts. (Estrada vs.
Sandiganbayan, G.R. No. 148965. February 26, 2002)

In Dungo v. People, G.R. No. 209464, July 1, 2015, a common misconception is that all mala in se
crimes are found in the Revised Penal Code, while all mala prohibita crimes are provided by special
penal laws. In reality, however, there may be mala in se crimes under special laws, such as plunder
under R.A. No. 7080. Similarly, there may be mala prohibita crimes defined in the Revised Penal
Code, such as technical malversation. The better approach to distinguish between mala in se and
mala prohibita crimes is the determination of the inherent immorality or vileness of the penalized
act. If the punishable act or omission is immoral in itself, then it is a crime malum in se; on the
contrary, if it is not immoral in itself, but there is a statute prohibiting its commission by reasons of
public policy, then it is malum prohibitum.

Sexual abuse and child abuse are both punishable under RA No. 7610, and yet, the Supreme Court
classified them differently.

Sexual abuse under Section 5 (b) of RA No. 7610 is considered by the Supreme Court as malum
prohibitum simply because it is punishable under special law. In sum, the first view was applied in
this case. (People vs. Udang, G.R. No. 210161, January 10, 2018, Justice Leonen, People vs. Caoili,
G.R. No. 196342, August 08, 2017; People vs. Caballo, G.R. No. 198732, June 10, 2013, Imbo vs.
People, G.R. No. 197712, April 20, 2015, and Malto vs. People, G.R. No. 164733, September 21, 2007)

Child abuse under Section 10 of RA No. 7610 was considered by the Supreme Court in People vs.
Mabunot, G.R. No. 204659, September 19, 2016 as malum in se. However, in Lucido vs. People, G.R.
No. 217764, August 7, 2017, the Supreme Court through Justice Leonen declared child abuse as
malum prohibitum. In the latest case of Patulot vs. People, G.R. No. 235071, January 7, 2019, the
Supreme Court considered child abuse as malum in se. Accordingly, when the acts complained of are
inherently immoral, they are deemed mala in se, even if they are punished by a special law. Physical
abuse of a child under RA No. 7610 is inherently wrong; hence, criminal intent on the part of the
offender must be clearly established with the other elements of the crime. In sum, the second view
was applied.

For purpose of the bar exam, if the crime is sexual abuse under Section 5 of RA No. 7610, fencing,
hazing, or sexual harassment the first view must be followed because the Supreme Court says so.
Thus, they are mala prohibita since they are punishable under special laws. On the other hand, if the
crime is child abuse under Section 10 of RA No. 7610, plunder, carnapping, piracy or highway
robbery/brigandage under PD No. 532, trafficking in person or terrorism, second view must be
observed. Thus, they are mala in se since they are wrong in nature.

Partakes the nature of malum prohibitum – Section 3 (g) of RA No. 3019 punishes a public officer,
who have entered, on behalf of the government, into a contract or transaction manifestly and
grossly disadvantageous to the government. Violation of this provision partakes of the nature of
malum prohibitum. (Luciano vs. Estrella, G.R. No. L-31622, August 31, 1970; Villa vs. Sandiganbayan,
G.R. No. 87186, April 24, 1992) Lack of benefits from the contract is not a defense on the part of
the public officer.

Private individuals, who benefitted from the contact, which is grossly and manifestly
disadvantageous to government, will be held liable under Section 4(b) of RA No. 3019. In other
words, notwithstanding the allegation of conspiracy with public officer to violate Section 3(g), the
liability of these private individuals will be based on Section 4 (b), which punishes any person for
knowingly inducing or causing the public officers to commit Section 3(g). In violation of Section 4 (b),
criminal intent must necessarily be proved. This is in clear recognition that Section 3(g), a malum
prohibitum specifically applies to public officers only. (Go vs. Fifth Division, Sandiganbayan, G.R. NO.
172602, September 3, 2007) In sum, violation of Section 4 (b) is malum in se.
Section 3 (d) of RA No. 3019 punishes a public officer or any member of his family, who accept
employment in a private enterprise with whom such public officer has a pending official business
with during the pendency thereof or within one year from its termination as it is considered a corrupt
practice. In Villanueva vs. People, G.R. No. 237864, July 8, 2020, Supreme Court declared violation of
Section 3 (d) as malum prohibitum. It was held that mere acceptance by wife of a TESDA officer, of
employment with RACE, with pending business with TESTA, renders them liable under the law.

In Luciano case, the Supreme Court declared violation of Section 3 (g) of RA No. 3019 as crime
which partakes of the nature of malum prohibitum. On the other hand, in Villanueva case, it
considered violation of Section 3 (d) as malum prohibitum.

Settled in the rule that violation of RA No. 3019 partakes of the nature of malum prohibitum.
However, the offense under Section 3 (e) of R.A. No. 3019 may be committed either by dolo, as when
the accused acted with evident bad faith or manifest partiality, or by culpa, as when the accused
committed gross inexcusable negligence. (Plameras v. People, G.R. No. 187268, September 4, 2013)
Since malice, evident bad faith or manifest partiality is an element of violation of Section 3 (e) of RA
No. 3019, this crime also partakes the character of malum in se.

Malversation and technical malversation - Malversation is either an intentional felony (or malum in
se) or a culpable felony. It can be committed by means of dolo or culpa. Hence, public officers, who
commits malversation, can be held liable for violation of Section 3 (e) of RA No. 3019 for causing
damage to the government through evident bad faith or manifest partiality (dolo) or gross
inexcusable negligence (culpa). (Pajaro, G.R. Nos. 167860–65, June 17, 2008).

On the other hand, technical malversation is malum prohibitum (Ysidoro v. People, G.R. No. 192330,
November 14, 2012), which can be committed without dolo and culpa. Manifest partiality and gross
inexcusable negligence are not elements of technical malversation. Hence, public officers, who
commits technical malversation, may not be held liable for violation of Section 3 (e) of RA No. 3019
(Villarosa vs. Hon. Ombudsman, G.R. No. 221418, January 23, 2019) unless additional circumstance
establishes manifest partiality, evident bad faith and gross inexcusable negligence.

In Villarosa vs. Hon. Ombudsman, supra, using tobacco fund to finance the regular operations of the
municipality, which are not in accordance with the law creating such fund constitutes technical
malversation. However, it was held that the mere act of using government money to fund a project
which is different from what the law states you have to spend it for does not fall under the definition
of manifest partiality nor gross inexcusable negligence. It must always be remembered that manifest
partiality and gross inexcusable negligence are not elements in the crime of technical malversation.

ABERRATIO ICTUS – If the crimes committed against the target victim and third person, who was hit
by reason of aberratio ictus, were produced by a single act, the accused is liable for a complex crime.
Thus, single act of throwing a grenade killing one and injuring another constitutes a complex
crime of murder and attempted murder. (People v. Julio Guillen, G.R. No. L-1477, January 18, 1950;
People vs. Bendecio, G.R. No. 235016, September 08, 2020) However, the accused is liable for
separate crimes despite the application of the aberratio ictus rule, and not a complex crime in the
following cases:

1. If the bullet that killed the target victim is different from the bullet that killed the third
person, who was hit by reason of aberratio ictus (People v. Flora, G.R. No. 125909, June 23, 2000;
People v. Adriano, G.R. No. 205228, July 15, 2015; Cruz vs. People, G.R. No. 216642, September 8,
2020);
2. If the crime committed against the third person, who was hit by reason of aberratio ictus, is
merely a light felony such as slight physical injuries (People v. Violin, G.R. Nos. 114003-06, January
14, 1997);

3. If the components of a complex crime are alleged in two different information. (People v.
Umawid, G.R. No. 208719, June 9, 2014);

4. If the crime committed against the third person, who was hit by reason of aberratio ictus, is
child abuse, which is an offense punishable under special law (Patulot vs. People, G.R. No. 235071,
January 7, 2019) Components of complex crime must be felonies.

Accused consciously poured hot cooking oil from a casserole on CCC, consequently injuring AAA (3
years old) and BBB (2 months old) burning their skins and faces. Accused is liable for child abuse
involving infliction of physical injury although there is no intent to degrade, debase or demean the
intrinsic worth and dignity of AAA and BBB as human beings. In fact, the intention of the accused is
merely to inflict injury on CCC but because of aberratio ictus or mistake of blow, AAA and BBB were
also injured. In sum, because of Article 4 of RPC, accused is liable for the wrongful act done (child
abuse against AAA and BBB) although it differs from the wrongful act intended (physical injuries on
CCC). This is not a complex crime. Accused is convicted of two counts of child abuse. (See: Patulot vs.
People, G.R. No. 235071, January 7, 2019) He should also be held liable for physical injuries.

CONSUMMATION OF THREAT - The crime of grave threat is consummated as soon as the threats
come to the knowledge of the person threatened or as soon as the victim heard accused utter his
threatening remarks. (People vs. Bueza, G.R. No. 242513, November 18, 2020)

PASSION - There is no uniform rule on what constitutes a considerable length of time. The
provocation and the commission of the crime should not be so far apart that a reasonable length of
time has passed during which the accused would have calmed down and be able to reflect on the
consequences of his or her actions. What is important is that the accused has not yet "recovered his
normal equanimity" when he committed the crime. Passion and obfuscation as a mitigating
circumstance need not be felt only in the seconds before the commission of the crime. It may build
up and strengthen over time until it can no longer be repressed and will ultimately motivate the
commission of the crime. (People vs. Oloverio, G.R. No. 211159, March 18, 2015, Justice Leonen)

SELF-DFENSE – Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and
(b) imminent unlawful aggression. Actual or material unlawful aggression means an attack with
physical force or with a weapon, an offensive act that positively determines the intent of the
aggressor to cause the injury. Imminent unlawful aggression means an attack that is impending or
at the point of happening; it must not consist in a mere threatening attitude, nor must it be merely
imaginary, but must be offensive and positively strong (like aiming a revolver at another with intent
to shoot or opening a knife and making a motion as if to attack). Imminent unlawful aggression must
not be a mere threatening attitude of the victim, such as pressing his right hand to his hip where a
revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot. (Ganal,
Jr. vs. People, G.R. No. 248130, December 2, 2020)

INSANITY - The defense of insanity is in the nature of a confession or avoidance because an accused
invoking it admits to have committed the crime but claims that he should not be criminally liable
therefor because of insanity, which is an exempting circumstance. Consequently, the accused is tried
on the issue of sanity alone, and if found to be sane, a judgment of conviction is rendered without
any trial on the issue of guilt. An accused invoking the exempting circumstance of insanity bears the
burden of proving it with clear and convincing evidence because every person is presumed sane. For
the defense of insanity to prosper, it must be proven that the accused was completely deprived of
intelligence, which must relate to the time immediately preceding or simultaneous to the
commission of the offense with which he is charged. (People vs. Mirana, G.R. No. 219113, April 25,
2018)

In order for the accused to be exempted from criminal liability under a plea of insanity, he must
successfully show that: (1) he was completely deprived of intelligence; and (2) such complete
deprivation of intelligence must be manifest at the time or immediately before the commission of
the offense. The defense failed to prove its plea of insanity under the requirements set by law.
Although accused underwent out-patient consultation for his diagnosed condition of schizophrenia
from August 2006 until 13 June 2009, this evidence of insanity may be accorded weight only if there
is also proof of abnormal psychological behavior immediately before or simultaneous with the
commission of the crime (on November 9, 2009). The evidence on the alleged insanity must refer to
the time preceding the act under prosecution or to the very moment of execution. (People vs. Dela
Cruz, G.R. No. 227997, October 16, 2019)

IMBECILITY AND MINORITY – Mental retardation includes (a) idiot, whose mental age is two-year
old; (b) imbecile, whose mental age is seven-year old; (c) moron or feebleminded, whose mental age
is twelve-year old and (d) borderline intelligence. (People vs. Butiong, G.R. No. 168932, October 19,
2011; People vs. Bayrante, G.R. No. 188978, June 13, 2012; People vs. Gilles, G.R. No. 229860, March
21, 2018) For purpose of statutory rape, there is no difference between actual age and mental age.

Having sexual intercourse with the offended party, who is under 12 years of age, is statutory rape
under Article 266-A (d) of RPC. The word “age” in this provision includes chronological age and
mental age. Hence, having sexual intercourse with idiot, imbecile, or feebleminded is statutory rape
under Article 266-A (d) (People vs. Daniega, G.R. No. 212201, June 28, 2017; People vs. Labordo, G.R.
No. 239033, February 13, 2019; People vs. XXX, G.R. No. 243988, August 27, 2020). However, having
sexual intercourse with a person with borderline intelligence is not statutory rape under Article 266-
A (d) because his mental age is above 12 years.

Having sexual intercourse with the offended party, who is deprived of reason, is rape under Article
266-A (b) of the Revised Penal Code. Mental retardation is within the contemplation of deprivation of
reason. Hence, having sexual intercourse with idiot, imbecile, feebleminded or person with
borderline intelligence is rape of a person deprived of reason under Article 266-A (b) (People vs.
Butiong, G.R. No. 168932, October 19, 2011; People vs. Bayrante, G.R. No. 188978, June 13, 2012).

The word “age” in the phrase “person below 18 years of age” in Section 3 of RA No. 7610 is either
chronological or mental. A person who has a cognitive disability would be considered a child under
RA No. 7610 based on his or her mental age, not chronological age. For purpose of Section 3 of RA
No. 7610, there is no difference between actual age and mental age. Thus, a mentally-retarded adult
(24 years of age), who had a mental age of an 8-year-old, is a child protected by RA No. 7610.
(Versoza vs. People, G.R. No. 184535, September 03, 2019) Since the concept of a child in RA No.
7610 is adopted by RA No. 9208, a mentally- retarded adult is a child within the context of qualified
trafficking in person. (People vs. Ybanez, G.R. No. 220461, August 24, 2016)

Under Section 5 (b) of RA No 7610, when the child subjected to sexual abuse is under 12 years of age,
the perpetrators shall be prosecuted for rape and acts of lasciviousness under RPC. The word “age”
in the phrase “when the victim is under twelve (12) years of age” in Section 5 (b) of RA No. 7610 is
either chronological or mental. For purpose of Section 5 (b) of RA No. 7610, there is no difference
between actual age and mental age. Hence, the victim whose actual age is 12 years old but her
mental age is 9 years old, is considered as a victim under 12 year of age within the contemplation of
Section 5 (b). (People vs. Pusing, G.R. No. 208009, July 11, 2016, Justice Leonen)

In exempting circumstance, there is a difference between actual age and mental age. In exempting
circumstance of imbecility, what is important is the mental age of the accused. An idiot, whose
mental age is 2 years, and imbecile, whose mental age is 7 years old (People vs. Butiong, G.R. No.
168932, October 19, 2011, Bersamin) are exempt from criminal liability. A feebleminded, whose
mental age is 12 years old, is not exempt from criminal liability since he is not an imbecile (People vs.
Nunez, G.R. No. 112429-30, July 23, 1997) but he is entitled to mitigating circumstance of mental
illness (People vs. Formigones, G.R. No. L-3246, November 29, 1950). In exempting circumstance of
minority under Section 6 of RA No. 9344, what is important is the chronological or actual age of the
accused.

If the actual age of the accused is 18 years old and mental age is 9 years old, the exempting
circumstance of minority and imbecility shall not be appreciated because he is neither a minor nor an
imbecile (People vs. Roxas, G.R. No. 200793, June 04, 2014).

AGGRAVATING CIRCUMSTANCES - There are new guidelines on how to allege aggravating or

qualifying circumstance in the Information. In cases where law uses a broad term to embrace various
situations in which may exist, such as but are not limited to (1) treachery; (2) abuse of superior
strength; (3) evident premeditation; (4) cruelty, alleging in the information the name of the
modifying circumstance e.g. treachery is not enough. The information must state the ultimate facts
relative to such circumstance e.g. alleging that the accused surreptitiously stabbed the victim at his
back to ensure that he cannot defend himself. In case of failure to comply with the rule on allegation
of ultimate facts, the Information may be subject to a motion to quash or a motion for a bill of
particulars. Failure of the accused to avail any of the said remedies constitutes a waiver of his right
to question the defective statement of the aggravating or qualifying circumstance in the Information,
and consequently, the same may be appreciated against him if proven during trial. Alternatively,
prosecutors may sufficiently aver the ultimate facts relative to a qualifying or aggravating
circumstance by referencing the pertinent portions of the resolution finding probable cause against
the accused, which resolution should be attached to the Information. (People vs. Solar, G.R. No.
225595, August 6, 2019)

The Information for murder alleged that the killing of the victim is qualified by the circumstances of
treachery and abuse of superior strength. This information is defective since the prosecution failed to
allege facts on which treachery and abuse of super strength are based. (The prosecution to comply
with Solar principle may allege that accused to render the victim defenseless surreptitiously stabbed
in at his back) It was held that: Accused did not question the supposed insufficiency of the
Information filed against him through either a motion to quash or motion for bill of particulars. He
voluntarily entered his plea during the arraignment and proceeded with the trial. Thus, he is deemed
to have waived any of the waivable defects in the Information, including the supposed lack of
particularity in the description of the attendant circumstances. (People vs. Solar, supra)

Justice Bersamin in his dissenting opinion said that the accused had no duty or obligation to remind
the State by motion to quash (or motion for bill of particular) on what charge he should be made to
answer to. The information did not charge murder, but only homicide. Justice Leonen joined the
dissenting opinion of Justice Bersamin. (People vs. Solar, supra)

PARTIAL RESTITUTION - The payment, indemnification, or reimbursement of, or compromise on the

amounts or funds malversed or misappropriated, after the commission of the crime, does not
extinguish the accused's criminal liability or relieve the accused from the penalty prescribed by the
law. At best, such acts of reimbursement may only affect the offender's civil liability, and may be
credited in his favor as a mitigating circumstance analogous to voluntary surrender. Accused enjoys
the mitigating circumstance of voluntary surrender, due to his partial restitution of the amount
malversed (Valenzuela vs. People, G.R. No. 205693, February 14, 2018)

CONSPIRACY – The fact that accused prevented preventing Oliva from reporting the shooting
incident to the police is not an indication that he conspired with co-accused in killing the victim. Mere
knowledge, acquiescence, or approval of the act, without cooperation or agreement to cooperate, is
not enough to constitute one a party to a conspiracy. There must be intentional participation in the
transaction with a view to the furtherance of the common design and purpose. The shooting incident
transpired during a heated argument in a drinking spree. There was no showing that accused actively
participated in the furtherance of the common design or purpose since the shooting transpired and
was consummated even without his cooperation or assistance. (De Los Santos vs. People, G.R. No.
231765, August 24, 2020). However, he could be held liable for obstruction of justice.

If there is conspiracy, the act of the public officer in violating RA No. 3019 is imputable to the private
individual although they are not similarly situated in relation to the object of the crime. Moreover,
Section 9 of RA No. 3019 provides penalty for public officer or private person for crime under Section
3. Hence, a private individual can be prosecuted for violation of RA No. 3019 (Go vs. The Fifth
Division, Sandiganbayan, G.R. No. 172602, April 13, 2007). Even if the public officer, with whom the
private individual allegedly conspired, died, the latter can still be prosecuted for violation of RA No.
3019. Death extinguishes the criminal liability but not the crime. Hence, if there is proof of the crime
and conspiracy between the dead public officer and private individual, the latter can still be convicted
of violation of RA No. 3019 (People vs. Go, GR No. 168539, March 25, 2014; Canlas vs. People, G.R.
Nos. 236308-09, February 17, 2020). However, if the public officer with whom the private individual
allegedly conspired is acquitted, the latter should also be acquitted (Marcos vs. Sandiganbayan, G.R.
No. 126995, October 6, 1998).

While the primary offender in violation of RA No. 3019 and plunder are public officers, private
individuals may also be held liable for the same if they are found to have conspired with said officers
in committing the same. This proceeds from the fundamental principle that in cases of conspiracy,
the act of one is the act of all. In this case, Janet Napoles engaged in the illegal hemorrhaging of
Senator Enrile's PDAF. Thus, they are rightfully charged as a co-conspirator for corruption and
plunder. (Napoles vs. Carpio-Morales, G.R. Nos. 213542-43, March 15, 2016; Justice Leonen
concurred)

Private persons acting in conspiracy with public officers may be indicted and if found guilty, be held
liable for the pertinent offenses under Section 3 of Republic Act No. 3019. (Granada vs. People, G.R.
No. 184092, February 22, 2017, Justice Leonen) When a contract that is grossly and manifestly
disadvantageous to the government is entered into, the persons involved—whether public officers or
private persons—may be charged for violating the Anti-Graft and Corrupt Practices Act and suffer the
same penalty if found guilty beyond reasonable doubt. (Garcia-Diaz vs. Sandiganbayan, G.R. No.
193236, September 17, 2018, Justice Leonen)

If a contract with the government involved an overprice products or services, the public officers are
liable for violation of Section 3 (e) of RA No. 3019 for causing undue injury to the government or
giving undue advantage to the overpaid private individual through manifest partiality and evident
bad faith; or violation of Section 3 (g) for entering into a contract, which is manifestly and grossly
disadvantageous to the government. The overpaid private individual is also liable for violation of
Section 3 (e) or (g) of RA No. 3019 on the basis of conspiracy and Go vs. Fifth Division of the
Sandiganbayan. (Santillano vs. People, G.R. Nos. 175045-46, March 03, 2010; Uyboco vs. People, G.R.
No. 211703, December 10, 2014; Granada vs. People, supra, Justice Leonen) If the overpaid private
individual is a corporation, the responsible officers are liable for violation of RA No. 3019. When the
separate juridical personality of a corporation is used to defeat public convenience, justify wrong,
protect fraud, or defend crime, the law will regard the corporation as an association of persons.
There is sufficient basis to pierce the corporate veil, and responsible corporate officers e.g. president
should be held equally liable as her co-conspirators. (Granada vs. People, supra, Justice Leonen)

A municipal mayor allegedly obstructed and stopped the execution of the Municipal Trial Court's
valid writs of execution and demolition of the structure illegally constructed on the lot owned by the
wife of the complainant. The Sandiganbayan convicted the mayor of violation of Section 3 (g) of RA
No. 3019 by giving unwarranted benefit to the defendant in that civil case. However, his criminal
liability was extinguished by reason of his death. The two accused, municipal administrator and
private secretary of the mayor, were present when the mayor intervened in the demolition site. But
there is no evidence showing their participation in the intervention committed by the mayor. Passive
presence, knowledge or approval of the crime, or companionship is not an evidence of conspiracy.
(Dela Cruz vs. People, G.R. No. 197153, October 9, 2019)

FENCING – Fencing is a malum prohibitum, and PD No. 1612 creates a prima facie presumption of
Fencing from evidence of possession by the accused of any good, article, item, object or anything of
value, which has been the subject of robbery or theft; and prescribes a higher penalty based on the
value of the property. (Cahulugan vs. People, G.R. No. 225695, March 21, 2018)

Actual knowledge that the property is stolen is not required. Fencing is committed if the accused
should have known that the property is stolen taken into consideration the attending circumstances
such as (1) the price of the property is so cheap; (2) expensive jewelry is being offered for sale at
midnight in a street; (3) accused knew that the car he bought was not properly documented (Dimat
vs. People, supra); or (4) new tires are being peddled in the streets by an unknown seller (Ong vs.
People, supra). Furthermore, mere possession of stolen property shall be prima facie evidence of
fencing (Section 6 of PD No. 1612).

The accused should have been forewarned that the soft drinks came from an illegal source, as his
transaction with the thief did not have any accompanying delivery and official receipts, and that the
latter did not demand that such items be replaced with empty bottles, contrary to common practice
among dealers of soft drinks. He should have known that the goods are stolen. He was convicted of
fencing. (Cahulugan vs. People, G.R. No. 225695, March 21, 2018)

If the information alleged that the accused “knows” that the property is stolen, he cannot be
convicted of fencing on the ground that he “should have known” that the same was derived from the
proceeds of theft because of his constitutional right to be informed (Lim vs. People, G.R. No. 211977,
October 12, 2016).

In Lim vs. People, G.R. No. 211977, October 12, 2016, the clearance stated in Section 6 of PD No.
1612 is only required if several conditions, are met: first, that the person, store, establishment or
entity is in the business of buying and selling of any good, articles item object, or anything of value;
second, that such thing of value was obtained from an unlicensed dealer or supplier thereof; and
third, that such thing of value is to be offered for sale to the public. In the present case, the first and
third requisites were not met. Nowhere was it established that accused was engaged in the business
of buy and sell. Neither was the prosecution able to establish that accused intended to sell or was
actually selling the subject grader to the public.

ROBBERY WITH HOMICDE - In robbery with homicide, all other felonies such as rape, intentional
mutilation, usurpation of authority, or direct assault with attempted homicide are integrated into this
special complex crime. This special complex crime is committed as long as death results by reason or
on occasion or robbery without reference or distinction as to the circumstances, causes or modes or
persons intervening in the commission of the crime (People vs. De Leon, GR No. 179943, June 26,
2009; People vs. Jugueta, G.R. No. 202124, April 05, 2016).

There is no special complex crime of robbery with homicide and frustrated homicide. The offense
should have been designated as robbery with homicide alone, regardless of the number of homicides
or injuries committed. (People vs. Labuguen, G.R. No. 223103, February 24, 2020)

Homicide component – A special complex crime of robbery with homicide takes place when a
homicide is committed either by reason, or on the occasion, of the robbery. To sustain a conviction
for robbery with homicide, the prosecution must prove the following elements: (1) the taking of
personal property belonging to another; (2) with intent to gain; (3) with the use of violence or
intimidation against a person; and (4) 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; (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 vs.
Balute, G.R. No. 212932, January 21, 2015)

If the original design is to kill the victim (e.g., there is motive to kill), and accused killed him, and took
his property as an afterthought, the crimes committed are homicide or murder and theft (People v.
Atanacio, No. L-11844, November 29, 1960) or robbery. (People vs. Natindim, G.R. No. 201867,
November 4, 2020)

In robbery with homicide, it is immaterial that the victim of homicide is a bystander (People vs. Barut,
G.R. No. L-42666 March 13, 1979), a responding policeman (People vs. Pelagio, G.R. No. L-16177,
May 24, 1967) or one of the robbers. (People vs. Casabuena, G.R. No. 246580, June 23, 2020)

The victim was shot while accused was robbing the passengers of a jeepney. Even if victim's bag was
not taken, accused are liable for special complex crime of robbery with homicide. In this special
complex crime, it is immaterial that the victim of homicide is other than the victim of robbery, as long
as homicide occurs by reason of the robbery or on the occasion thereof. (People vs. Madrelejos, G.R.
No. 225328, March 21, 2018)

Collective responsibility – Case law establishes that whenever homicide has been committed by
reason of or on the occasion of the robbery, all those who took part as principals in the robbery will
also be held guilty as principals of robbery with homicide although they did not take part in the
homicide, unless it appears that they sought to prevent the killing. (People v. Dela Cruz, G.R. No.
168173, December 24, 2008; People v. Castro, G.R. No. 187073, March 14, 2012; People vs. Labagala,
G.R. No. 221427, July 30, 2018; People vs. Bongos, G.R. No. 227698, January 31, 2018; People vs.
Casabuena, G.R. No. 246580, June 23, 2020)
Once conspiracy is established between several accused in the commission of the crime of robbery,
they would all be equally liable for the rape committed by anyone of them on the occasion of the
robbery, unless anyone of them proves that he endeavored to prevent the others from committing
rape. (People v. Suyu, G.R. No. 170191, August 16, 2006; People v. De Leon, G.R. No. 179943, June
26, 2009; People vs. Madrelejos, G.R. No. 225328, March 21, 2018; People vs. Sanota, G.R. No.
233659, December 10, 2019)

However, in fine, the long line of jurisprudence on the special complex crime of robbery with rape
requires that the accused be aware of the sexual act in order for him to have the opportunity to
attempt to prevent the same, without which he cannot be faulted for his inaction. (People vs.
Agaton, G.R. No. 251631, August 27, 2020) If there is no evidence that the accused is aware of the
commission of rape, he could not have prevented the rape. Hence, the accused is only liable for
robbery and not robbery with rape. (People v. Canturia, G.R. No. 108490, June 22, 1995)

Canturia principle where lack of awareness is a defense is applicable to kidnapping with rape (People
v. Anticamaray, G.R. No. 178771, June 8, 2011), kidnapping with homicide, robbery with homicide
(People v. Corbes, G.R. No. 113470, March 26, 1997) and robbery with arson.

RAPE WITH HOMICIDE - The phrase “by reason of the rape” obviously conveys the notion that the
killing is due to the rape, which is the crime the offender originally designed to commit. The victim of
the rape is also the victim of the killing. In contrast, the phrase “on the occasion of the rape” as
shown by Senate deliberations refers to a killing that occurs immediately before or after, or during
the commission itself of the rape, where the victim of the homicide may be a person other than the
rape victim. (People vs. Villaflores, G.R. No. 184926, April 11, 2012; People vs. Laog, G.R. No. 178321,
October 5, 2011)

For the crime of robbery with rape, the law does not distinguish whether the rape was committed
before, during, or after the robbery, but only that it punishes robbery that was accompanied by rape.
(People vs. Salen, G.R. No. 231013, January 29, 2020, Justice Leonen)

ARBITRARY DETENTION AND MURDER - If the victim dies or is killed as a consequence of detention,
the offender is liable for special complex crime of kidnapping with homicide. If the victim dies or is
killed in the course of arbitrary detention, the offender is not liable for special complex crime.
Neither is he liable for complex crime. These two crimes were not produced by a single act. Arbitrary
detention was not used as a necessary means to commit murder. Hence, the offenders are liable for
separate crimes of murder and arbitrary detention even if they were indicted of a complex crime in
the Information. It was improper for the prosecutor to have charged them of a complex crime as the
offenses were separate and distinct from each other and cannot be complexed. (People vs. Dongail,
G.R. No. 217972, February 17, 2020)

INCIDENTAL DEPRIVATION OF LIBERTY – Accused committed robbery inside a factory. Before they
could leave the premises after the commission of the robbery, the police authorities were already at
the scene of the crime. Since they cannot escape, they detained 21 victims. After 22 hours of
captivity, the hostages were rescued. Since the principal intention of the accused is to rob the
victims, and the deprivation of their liberty is just incidental to the prevention of the responding
police officers from arresting them, the crime committed is robbery, which absorbed incidental
kidnapping and serious illegal detention. (People v. Astor, G.R. Nos. L-71765-66, April 29, 1987)

AAA lived rent-free in a house owned by accused. Accused intercepted AAA at the garage area and
held a knife to her back and dragged her to his room and raped her. Shortly after, police authorities
arrived; but accused refused to release her and detained her for a period of time. Although the initial
(forcible) abduction of AAA may have been absorbed by the crime of rape, the continued detention
of AAA after the rape cannot be deemed absorbed in it. Likewise, since the detention continued after
the rape had been completed, it cannot be deemed a necessary means for the crime of rape. Hence,
the accused is convicted of rape and slight illegal detention (People vs. Concepcion, G.R. No. 214886,
April 04, 2018, Justice Leonen) or serious illegal detention with the qualifying circumstance that the
victim is a female.

The Astor case is not compatible with Concepcion case. However, for purpose of the bar exam, Astor
case should be applied to robbery and detention while Concepcion case should be applied to rape
and detention. In sum, if the robbers held hostages the victims to prevent the policemen form
arresting them, the crime committed is robbery, which absorbs illegal detention. On the other hand,
if the rapist held hostage the victim to prevent the policemen from arresting him, the crimes
committed are rape and serious illegal detention.

SPECIAL MITIGATING CIRCUMSTANCE – Under Article 64 (5), when there are two or more mitigating
circumstances and no aggravating circumstances are present, the court shall impose the penalty next
lower to that prescribed by law. This is called as special mitigating circumstance. The title of Article
64 is rules for the application of penalties which contain three periods. Penalties containing three
periods are called divisible penalties.

Under Article 63, par. 2 (3), when there are some mitigating circumstances and there is no
aggravating circumstance, the lesser penalty (of reclusion perpetua) shall be applied. The title of
Article 63 is rules for the application of indivisible penalties. Death and reclusion perpetua are
indivisible penalties. Article 63, par. 2 (3) is only applicable cases in which the law prescribes a
penalty composed of two indivisible penalties. There is only one penalty composed to two individual
penalties, and that is, reclusion perpetua to death.

If the accused is convicted of parricide where the law prescribes the penalty of reclusion perpetua to
death, and there are two mitigating circumstances (e.g. voluntary surrender and confession), there
are two views on which provision is applicable.

First view is case of People vs. Genosa, G.R. No. 135981, January 15, 2004. The Supreme Court
appreciated special mitigating circumstance under Article 64. Hence, reclusion perpetua to death was
graduated to reclusion temporal.

Second view is the case of People v. Takbobo, G.R. No. 102984, June 30, 1993. Article 64 (5) on
special mitigating circumstance that requires the graduation of penalty is only applicable if the
penalty contains three periods. Reclusion perpetua to death prescribed for parricide is not a penalty
containing three periods. The applicable provision is Article 63 par. 2 (3) on the rule involving a
penalty composed of two indivisible penalties. Hence, the lesser penalty shall be applied. Reclusion
perpetua is lesser than death. Hence, the accused shall be sentenced to suffer reclusion perpetua.

It is submitted that the correct view is the Takbobo case. In People vs. Brusola, G.R. No. 210615, July
26, 2017, the court convicted the accused of parricide, and found the mitigating circumstances of
passion and surrender. Accused citing Genosa case argued that reclusion perpetua to death should
be reduced to reclusion temporal by reason of the special mitigating circumstance. However, the
Supreme Court through Justice Leonen refused to apply the Genosa principle. It was held that
considering that the penalty for parricide consists of two indivisible penalties (reclusion perpetua to
death), Article 63, and not Article 64, is applicable. Thus, the penalty of reclusion perpetua was
properly imposed.
PENALTIES UNDER SPECIAL LAWS - When a special law adopts the technical nomenclature of the
penalties (e.g. prison mayor) in RPC, the intention of the law is to adopt the provisions under this
Code on imposition of penalty (People v. Simon, G.R. No. 93028, July 29, 1994). Special aggravating
circumstance of organized/syndicated crime group (People v. Esparas, G.R. No. 120034, July 10,
1998); The privileged mitigating circumstance of minority (People v. Montalaba, G.R. No. 186227, July
20, 2011; People v. Musa, G.R. No. 199735, October 24, 2012); and special aggravating circumstance
of quasi- recidivism (People v. Salazar, G.R. No. 98060, January 27, 1997) were appreciated in malum
prohibitum crime where the law punishing it adopts the technical nomenclature of the penalty of
RPC. The penalty for illegal possession of loose firearm shall be applied in its minimum period
because of the mitigating circumstance of confession (Jacaban v. People, G.R. No. 184355, March 23,
2015), and the penalty for sexual abuse (Malto v. People, G.R. No. 164733, September 21, 2007), that
for fencing (Cahulugan vs. People, G.R. No. 225695, March 21, 2018) and that for violence against
woman (Melgar vs. People, G.R. No. 223477, February 14, 2018) shall be applied in its medium
period in the absence of modifying circumstance.

If the special law has not adopted the technical nomenclature of penalties in the Revised Penal Code,
the intention of the law is not to adopt the provisions of this Code on imposition of penalties.
Moreover, modifying circumstances cannot be appreciated since the penalty not borrowed from the
Code has no periods. The crime has no attempted or frustrated stage since this penalty cannot be
graduated one or two degrees lower.

For example, the accused confessed to an offense where the special law prescribes the penalty of not
more than 10 years of imprisonment but not less than 5 years (American penalty). Under Article 63
of the Revised Penal Code, if there is a mitigating circumstance such as confession, the penalty shall
be applied in its minimum period. However, confession cannot be appreciated since the penalty
prescribed by law, which is not borrowed from the Code, has no minimum period.

Penalty under RA No. 9165 - The Simon principle is not applicable if the crime committed involved
dangerous drugs because R.A. No. 9165 has a special rule on the application of the provisions of the
Revised Penal Code. Under Section 98 of R.A. No. 9165, notwithstanding any law, rule or regulation
to the contrary, the provisions of RPC shall not apply to the provisions of this Act, except in the case
of minor offenders.

R.A. No. 9165 has not adopted the technical nomenclature of the penalties of RPC (e.g. the penalty
for possession of dangerous drugs involving shabu of less than 5 grams is imprisonment of 12 years
and 1 day to 20 years). If the accused is a minor, the penal system of RPC shall apply because Section
98 of R.A. No. 9165 say so. To apply the penal provisions of the Code, the penalty for R.A. No. 9165
must be converted into a Spanish penalty. For example, the penalty for sale of dangerous drugs or
importation of dangerous drugs is life imprisonment to death. If the accused is a minor, this penalty
shall be converted into reclusion perpetua to death. Taking into consideration the privileged
mitigating circumstance of minority, reclusion perpetua to death shall be reduced to reclusion
temporal. (People v. Montalaba, G.R. No. 186227, July 20, 2011; People v. Musa, G.R. No. 199735,
October 24, 2012).

However, even though Section 98 of RA No. 9165 mandates the application of the provisions of RPC
in a case where the offender is a minor, if the penalty for a crime involving dangerous drugs cannot
be converted into a Spanish penalty, the penal provisions of RPC shall not apply. For example, the
penalty for use of dangerous drugs committed by a first-time offender is rehabilitation. Even if the
offender is a minor, the privileged mitigating circumstance of minority shall not be considered
because this penalty of rehabilitation cannot be converted into Spanish penalty, and thus, it cannot
be reduced one degree lower.

American penalty – Under the Indeterminate Sentence Law, for offense punishable under special law
the imposed minimum penalty shall not be less than the minimum penalty prescribed by law while
the imposed maximum penalty shall not be more than the maximum penalty prescribed by law.

Possession of shabu involving less than 5 grams, or marijuana involving less than 300 grams is
punishable by imprisonment of 12 years and 1 day to 20 years. Applying the ISLAW, the minimum
penalty shall not be less than 12 years and 1 day while the maximum penalty shall not be more than
20 years. Thus, the court can sentence the accused to suffer 12 years and one day of imprisonment
as minimum to 14 years as maximum. (Felomino vs. People, G.R. No. 245332, October 16, 2019)

Possession of shabu involving 5 grams or more but less than 10 grams, or marijuana involving 300
grams or more, but less than 500 grams is punishable by imprisonment of twenty (20) years and one
(1) day to life imprisonment.

Applying Section 1 of ISLAW, the minimum penalty shall not be less than 20 years and 1 day. Under
Section 2 thereof, the rule on indeterminate sentence will not apply if the penalty is life
imprisonment. Hence, the maximum penalty must be less than life imprisonment. (Concurring
opinion by Justice Peralta, People vs. Obias, G.R. No. 222187, March 25, 2019). A penalty of more
than 40 years shall be considered as life imprisonment. Hence, the maximum penalty must be 40
years of imprisonment or less such as 30 years. Thus, the court can sentence the accused to suffer 20
years and one day of imprisonment as minimum to 30 years as maximum. (People vs. Pis-an, G.R. No.
242692, July 13, 2020)

The Obias case and Pis-an case departed from the case of People vs. Badilla, G.R. No. 218578, August
31, 2016 where the Supreme Court did not apply the ISLAW where the penalty is 20 years and 1 day
to life imprisonment.

GOOD CONDUCT ALLOWANCE – There are three benefits given by the controversial RA No. 10592, to
wit: (1) credit of preventive imprisonment; (2) GCTA for preventive imprisonment; and (3) GCTA for
imprisonment.

1. Credit for preventive imprisonment - Credit of preventive imprisonment is governed by

Article 29 of RPCas 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.

2. GCTA for preventive imprisonment - GCTA for preventive imprisonment is governed by

Articles 29 and 97 of the Code as amended by RA No. 10592. Under Article 29, whenever an accused
has undergone preventive imprisonment for a period equal to the possible maximum imprisonment
of the offense charged, he shall be released immediately; for purposes of immediate release, the
computation of preventive imprisonment shall be the actual period of detention with GCTA.
However, the entitlement of GCTA for preventive imprisonment 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.”

3. GCTA for imprisonment – GCTA for imprisonment is governed by Article 97 of the Code as
amended by RA No. 10592. Unlike Article 29 on GCTA for preventive imprisonment, Article 97 on
GCTA for imprisonment does not provide an exclusionary or disqualification clause or qualifying
proviso.

The last paragraph of Article 29 contains provisions on GCTA for preventive imprisonment. The
phrase subsequent to the words “provided finally” in Article 29 is a proviso, which contains the
exceptions to the rule under the provision. Settled is the rule that a proviso containing the exceptions
will merely qualify the provision containing the general rule that immediately preceded it.

In People vs. 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 in Article 29 on “the exclusion of heinous criminals,
habitual delinquents, recidivists and escapes from the coverage of RA No. 10592” merely qualifies
the provision in Article 29 on GCTA for preventive imprisonment. The qualifying effect of the proviso
under Article 29 cannot extend to the provision under Article 97 on GCTA for imprisonment. Hence,
the author of this book humbly submit that heinous criminals, habitual delinquents, recidivists and
escapes are disqualified from the benefit of GCTA for preventive imprisonment; but they are not
disqualified from the benefit of GCTA for imprisonment.

COMMUNITY SERVICE - RA No. 11362, which is approved on August 8, 2019, has introduced a new
provision on community service, and that is, Article 88-a of Revised Penal Code. Community service is
not a penalty but a mode of serving the penalty of arresto menor or arresto mayor. Article 88-a of
the Code provides:

“Article 88a. Community Service. The court in its discretion may, in lieu of service in jail, require the
penalties of arresto menor and arresto mayor be served by the defendant by rendering community
service in the place where the crime was committed, under such terms as the court shall determine,
taking into consideration the gravity of the offense and the circumstances of the case, which shall be
under the supervision of a probation officer: Provided, That the court will prepare an order imposing
the community service, specifying the number of hours to be worked and the period within which to
complete the service. The order is then referred to the assigned probation officer who shall have
responsibility of the defendant.

“The defendant shall likewise be required to undergo rehabilitative counseling under the social
welfare and development officer of the city of municipality concerned with the assistance of the
Department of Social Welfare and Development. In requiring community service, the court shall
consider the welfare of the society and the reasonable probability that the person sentenced shall
not violate the law while rendering the service.

“Community service shall consist of any actual physical activity which inculcates civil consciousness,
and is intended towards the improvement of a public work or promotion of a public service.’’

“If the defendant violates the terms of the community service, the court shall order his/her re-arrest
and the defendant shall serve the full term of the penalty, as the case may be, in jail, or in the house
of the defendant as provided under Article 88. However, if the defendant has fully complied with the
terms of the community service, the court shall order the release of the defendant unless detained
for some other reason. The privilege of rendering community service in lieu of service in jail shall
availed of only once.”
IMMUTABILITY OF FINAL JUDGEMENT - Under the doctrine of finality of judgment or immutability of
judgment, a decision that has acquired finality becomes immutable and unalterable, and may no
longer be modified in any respect, even if the modification is meant to correct erroneous conclusions
of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the
land. Nonetheless, the immutability of final judgments is not a hard and fast rule as the Court has the
power and prerogative to relax the same in order to serve the demands of substantial justice.
(People vs. Layag, G.R. No. 214875, October 17, 2016)

If the death of the accused happened prior to the finality of the judgement convicting him of rape
and acts of lasciviousness, but the Supreme Court was belatedly informed of such death only after
the finality of such judgment, the case will be re-opened for purposes of dismissing the case. (People
vs. Layag, G.R. No. 214875, October 17, 2016) If the penalty imposed by the trial court is outside the
range prescribed by law, the Supreme Court can re-open a final and immutable judgement to impose
the correct penalty under the law. (Bigler vs. People, G.R. No. 210972, March 19, 2016; Aguinaldo vs.
People, G.R. No. 226615, January 13, 2021) If the new law prescribes a lesser penalty for the crime of
which the accused was previously convicted by final judgement, the Supreme Court can re-open a
final and immutable judgement judgment to impose the lesser penalty under the new law. In sum,
the new law shall be given a retroactive effect. (Hernan vs. Honorable Sandiganbayan, G.R. No.
217874, December 5, 2017). Layag case, Bigler and Hernan case are exceptions to the immutability of
final judgment rule.

REVOCATION OF TRILLANES AMNESTY - Proclamation No. 75 issued by President Aquino on

November 24, 2010 and concurred in by Congress granted amnesty to the participants of July 27,
2003 Oakwood Mutiny, the February 2006 Marines Stand-Off and the November 29, 2007 Manila
Peninsula Incident. Under Section 2 of Proclamation No. 75, they have to apply with the ad hoc
committee of the Department of National Defense (DND) to be entitled to the benefit of the amnesty
proclamation. In the case of Vera v. People, G.R. No. L- 18184, January 31, 1963, it was held that even
though an amnesty proclamation does not expressly impose this admission of guilt as condition, it is
still necessary for the accused to admit the commission of the crime charged to be entitled to the
benefits of amnesty proclamation.

The DND through Secretary Voltaire Gazmin on January 21, 2011 issued certificate of amnesty in
favor of Senator Trillanes. President Duterte on August 31, 2018 issued Proclamation No. 572
declaring the granting of amnesty to Senator Trillianes as null and void for failure to file application
and as required in Section 2 of Proclamation No. 75 and admit his guilt, which is an inherent
condition to avail of amnesty.

Validity of delegation of implementing authority - On September 9, 2018, Chief Presidential

Legal Counsel Salvador Panelo said he believes that former defense secretary Voltaire Gazmin may
be held liable for usurpation of authority when he recommended and approved the amnesty granted
to Senator Antonio Trillanes IV. On September 7, 2018, President Duterte explained that the power
to grant amnesty is a presidential prerogative and cannot be delegated to anybody else.

Legislative, executive and judicial powers belong to the people because “sovereignty resides in the
people and all government authority emanates from them”. When the people ratified the 1987
Constitution, they delegated these powers to the three main branches of government by vesting
legislative power, executive power and judicial power in Congress, the President and Supreme Court
and other lower courts, respectively. Since the people entrust these powers to these organs of
government, as a rule they may not re-delegate it to others. Re-delegation of these powers is a
betrayal of the trust reposed to them by the people.
This principle of non-delegability of power is in conformity with the Latin maxim of “Potestas
delegata non potest delagari”, or delegated authority cannot be delegated. The basis of this doctrine
is the ethical principle that such a delegated power constitutes not only a right but a duty that the
delegate must perform through his own judgment without intervention from another.

However, the principle of non-delegability of power is not an absolute rule. It is subject to several
exceptions. Congress in passing legislation is allowed to authorize an agency under the Executive
Branch to issue implementing rules and to determine the existence of certain facts in connection
with the implementation of the law. The conferment of quasi-legislative power and quasi- judicial
power to an implementing executive agency by Congress is not a violation of maxim of “potestas
delegata non potest delagari.” Thus, Congress can make a tax amnesty and require the Bureau of
Internal Revenue to determine whether a tax payer, who filed a tax amnesty application, is entitled
to the benefit of the law.

Under Amnesty Proclamation no. 8, dated September 7, 1946 issued by President Roxas and
concurred by Congress, declares amnesty in favor of persons, who committed felony in furtherance
of the resistance to the enemy during the Japanese occupation. The proclamation tasked the
Amnesty Commission to determine if the crime is committed within the terms thereof. In Vera vs.
Nanadiego, G.R. No. L-26539, February 28, 1990, the Supreme Court recognized the amnesty
extended by the Commission to amnesty applicant.

It is submitted that the President Aquino may validly delegate to the DND the authority to implement
the Amnesty Proclamation No. 75. The standing of this writer is the same as that of the Court of
Appeals in People vs. Soriano and Trillanes, CA-G.R. SP No. 159217, May 31, 2021. In that case, it was
held that:

“There was no undue delegation to the DND of the power of the President to grant amnesty, with
the concurrence of a majority of all the members of the Congress. Instead, what was delegated was
the implementation of the grant of amnesty, including the processing of the applications to
determine whether they complied with the conditions of the amnesty. It is clear that Secretary
Gazmin is not guilty of usurpation of official functions. Considering that there was no undue
delegation of the presidential power to grant amnesty to the Committee, it thus follows that
Secretary Gazmin did not usurp the President's official functions.”

Revocation of certificate of amnesty - Amnesty proclamation issued by a former President under

express authority of the Constitution and concurred in by Congress has the nature, force, effect, and
operation of a law (People vs. Macadaeg, G.R. No. L-4316, May 28, 1952). Hence, an incumbent
president cannot unilaterally revoke the bilateral acts of the former President and Congress in
making an amnesty proclamation. Same as a law, amnesty proclamation can only revoke by
concurrent actions of the President and Congress. Moreover, amnesty extinguishes the criminal
liability of the amnesty beneficiary. Hence, revocation made after the criminal extinction will not
prejudice the amnesty beneficiary.

Some experts in social media are saying that President Duterte cannot unilaterally revoked the
Amnesty Proclamation No. 75 issued by President Aquino and concurred in by Congress. With due
respect to their opinions, it is submitted that President Duterte through Proclamation No. 572 did not
revoke Amnesty Proclamation No. 75; he merely declared as null and void the granting of amnesty in
favor of Trillanes for failure to apply as required in Section 2 of Amnesty Proclamation No. 75, and for
not admitting his guilt. In sum, the President was actually nullifying the granting of the benefit of the
amnesty by DND through Secretary Gazmin to Senator Trillianes. Proclamation No. 572 is an attack
against the decision of DND granting amnesty and not against the bilateral acts of President Aquino
and Congress in issuing Proclamation No. 75. By basing his declaration of nullity of the granting of
amnesty on failure to file an application, the President is in effect invoking Section 2 of Amnesty
Proclamation No. 75; and by invoking Section 2 thereof, he is in effect, validating this amnesty
proclamation rather than revoking it. The opinion of this writer is the same as the position of the
Court of Appeals in People vs. Soriano and Trillanes, CA-G.R. SP No. 159217, May 31, 2021. It was
held in this case that:

“The general grant of amnesty by Proclamation No. 75 was not revoked or repealed by Proclamation
No. 572. Only the individualized grant to the petitioner was revoked.

Presidential power to revoke conditional amnesty - President Duterte can revoke the certificate of
amnesty issued by DND through Secretary Gazmin in favor of Trillanes for failure to file application
for amnesty as an express precondition to the granting of the benefit under an amnesty
proclamation and failure to admit his guilt. The DND is under the control power of the President.
Hence, he can nullify its decision granting amnesty benefit for failure of the beneficiary to comply
with required conditions. This is also the legal conclusion of the Court of Appeals in People vs.
Soriano and Trillanes, CA-G.R. SP No. 159217, May 31, 2021. In that case, it was held that:

“The grant of conditional amnesty to the petitioner was subject to, among others, the pre-conditions
of application and admission of guilt or criminal culpability in writing. If it is then found and known
that he indeed failed to fulfill these conditions originally, then the grant of amnesty becomes
susceptible to revocation.

“The legal effects of non-compliance with the procedural formalities required by a conditional
amnesty law are akin to the effects of that of a conditional pardon. When the grant of pardon is
made subject to conditions, compliance first with all the basic requirements is a must. If the
condition is violated or not fulfilled, the State can recommit the pardonee.

“Since the power to ultimately grant an individualized amnesty is lodged in the President, the
authority to revoke a conditional one can be logically ceded to that office in the absence of any
provision that locates the authority to revoke in some other office.

“Proclamation No. 572 is a valid exercise by the President of his Constitutional power of control over
all executive departments, bureaus, and offices.”

The granting of amnesty by the President is subject to congressional concurrence, but the revocation
of amnesty by reason of non-compliance with required conditions is not subject to the power of
Congress to concur. In People vs. Soriano and Trillanes, CA-G.R. SP No. 159217, May 31, 2021, the
Court of Appeals ruled:

“To the idea that the authority to revoke must also be concurred in by Congress, just as when the
President exercises the power to grant amnesty, the Court can only say, why not? To be sure,
however, the Constitution requires no such concurrence. The absence of a concurrence from
Congress cannot dilute, diminish or dissolve an exercise of executive prerogative that is sourced by
necessary implication from a clear grant of power to grant reprieves, pardon, parole and amnesty.”

Double jeopardy - There is no double jeopardy where the dismissal of the case was made with
express conformity of the accused. If the accused moved for the dismissal of the case due to criminal
extinction by reason of amnesty, reviving the case on the ground of a valid revocation of the granting
of amnesty does not violate the rule on double jeopardy. In People vs. Soriano and Trillanes, CA-G.R.
SP No. 159217, May 31, 2021, it was held that:
“Private respondent and his co-accused, invoking the amnesty conferred upon them, filed a Motion
to Dismiss with the RTC which it granted in an Order dated September 21, 2011. Thus, the dismissal
of the case was with the express consent of private respondent. X x x Therefore, first jeopardy has
not yet attached upon the dismissal of the coup d'etat case, and the continuation of the prosecution
against private respondent does not constitute double jeopardy.”

Judicial review - If an accused complied with the conditions required to avail the benefits of Amnesty
Proclamation, he has the remedy of raising the issue of criminal extinction by reason of amnesty in
court (People vs. Macadaeg, G.R. No. L-4316, May 28, 1952). It devolves on the court to protect his
right to be entitled to the benefits of Amnesty Proclamation (Tolentino vs. Catoy, G.R. No. L- 2503,
December 10, 1948).

The President may revoke the amnesty granted to a beneficiary for failure to comply with required
conditions. However, if the court in a petition questioning the said revocation of amnesty finds that
amnesty beneficiary made an application, admitted his guilt therein and complied with other
conditions, if there are any, and the DND properly approved the application, it may reverse the
presidential revocation.

In People vs. Soriano and Trillanes, CA-G.R. SP No. 159217, May 31, 2021, the Court of Appeals found
that the petitioner utterly failed to prove that Trillanes failed to comply with the conditions of
Proclamation No. 75. The evidence tends to show that Trillanes complied with the said conditions by
filing his application for amnesty, and admitting his guilt for the crimes enumerated under
Proclamation No. 75. The Court declares that it cannot be said that the grant of amnesty in favor of
Trillanes was validly revoked. As a result, the charges against Trillanes in connection with the
offenses “forgotten” or forgiven by the amnesty must be necessarily dropped. In other, words, the
RTC Order dismissing the coup d'etat case against Trillanes on the ground of amnesty is valid.

CONSTRUCTIVE DISCOVERY - The 10-year prescriptive period for falsification of document shall
commence to run on the date of recording of the falsified deed of sale in the Registry of Deeds
because of the constructive notice rule under the Torren system (People vs. Reyes, G.R. No. 74226,
July 27, 1989).

The accused falsified a notarized Secretary's Certificate by making it appear that a certain member of
the board participated in the meeting where in fact he is already dead. On the basis of this
Certificate, and Deed of Sale, the Registry of Deeds cancelled the title of the corporation’s property
and a new one was issued. Under RPC, the period tor the prescription of offenses commences from
the day on which the crime is discovered by the offended party, the authorities, or their agents.
However, the offender party constructively discovered the crime upon registration of the Secretary
Certificate with the Deed of Sale in the Registry of Deeds because of the rule on constructive notice
to the entire world; hence, the period for prescription commences on the date of registration of the
falsified document. The case was dismissed since the 10-year period of prescription for falsification
lapsed because the information was filed more than 10 years from the registration of the document.
(Lim vs. People, G.R. No. 226590, April 23, 2018)

The 15-year prescriptive period for bigamy shall commence to run on the date of actual discovery of
the bigamous marriage and not from the registration of bigamous marriage in the Office of the Civil
Registrar. The law on Civil Registry and the Family Code, which governed registration of marriage, do
not provide a rule on constructive notice (Sermonia vs. Court of Appeals, G.R. No. 109454, June 14,
1994).
PRESCRIPTION FOR OFFENSE – As a general rule under Act 3326, prescription for offense punishable
under special laws begins to run from the date of the commission of the offense, if the date of the
commission of the violation is known. However, if the necessary information, data, or records based
on which the crime could be discovered is readily available to the public, the State is to be presumed
to know that the crime has been committed. Hence, prescription begins to run from the date of the
commission of the offense.

There is an exception. Prescription for offense punishable under special laws begins to run from the
date of discovery thereof, if the date of the commission of the violation is not known. However, if the
necessary information, data, or records based on which the crime could be discovered is not readily
available to the public, there is no way for the State to know that the crime has been committed.
Hence, prescription begins to run from the date of the discovery of the offense. This is the blameless
ignorance doctrine. Under this principle, the State and private complainant should not be blame for
failure to institute the case immediately after the commission of the crime if they are ignorant or has
no reasonable means of knowing the existence of a crime.

In sum, in determining whether it is the general rule or the exception that should apply in a
particular case, the availability or suppression of the information relative to the crime should first be
determined. (People vs. Parba- Rural, G.R. No. 231884, June 27, 2018).

Under the law, SALNs are accessible to the public for copying or inspection at reasonable hours.
Under the circumstances, the State is to be presumed to know of her omissions during the eight-year
period of prescription set in Act No. 3326. (People vs. Parba-Rural, supra). Hence, the general rule
applies; prescription begins to run from the date the accused failed to file SALN.

Considering that during the Marcos regime, no person would have dared to assail the legality of the
transactions involving cronies (such as behest loans or transaction involving the construction of
nuclear power plant, it would be unreasonable to expect that the discovery of the unlawful
transactions was possible prior to 1986. (Disini v. Sandiganbayan, G.R. Nos. 169823-24 and 174764-
65, September 11, 2013) Hence, the prescriptive period for violation of

R.A. No. 3019 commenced from the date of its discovery in 1992 after the Committee made an
exhaustive investigation. (Presidential Ad hoc Fact-finding Committee v. Hon. Desierto, G.R. No.
135715, April 13, 2011) To rule otherwise is to let the period of prescription run and yet the State
could not interrupt it prior to the EDSA revolution.

Necessary information, data, or records based on which the crime committed by cronies during the
Marcos regime are not readily available to the public. The martial law prevented the filing of criminal
cases. The information about the violation was suppressed, possibly through connivance. Thus, the
exception applies and the period of prescription shall be reckoned from the date of discovery
thereof. (People vs. Parba-Rural, supra)

INTERRUPTION OF PRESCRIPTION – Hypothetical problem: Complaints for preliminary investigation

for violation of ordinance, violation of BP Blg. 22 and simple oral defamation are filed with the
prosecutor’s office. These cases are covered by the Rules on Summary Procedure. Does the filing of
these complaints interrupt the running of period of prescription?

1. The filing of complaint involving violation of ordinance with the prosecutor’s office does not
interrupt the running of period of prescription. The proceedings mentioned in Act No. 3326 are
“judicial proceedings.” Preliminary investigation, which is not a judicial proceeding contemplated in
Act 3326, will cause a prescriptive interruption. (Zaldivia v. Reyes, Jr., G.R. No. 102342, July 3, 1992)
The provision in the Rules on Criminal Procedure regarding the interruption of prescription by
institution of criminal action is not applicable to violation of ordinance because case involving this
crime is covered by the Rules on Summary Procedure. (Jadewell Parking Systems Corp. vs. Lidua, Sr.,
G.R. No. 169588, October 7, 2013, Justice Leonen)

2. The filing of complaint involving violation of BP Blg. 22 with the prosecutor’s office interrupts
the running of period of prescription. Under Act No. 3326, the running of the prescription of offense
punishable under special law shall be interrupted when “judicial proceedings for investigation and
punishment” are instituted against the guilty person. The proceeding is described as “judicial” since
when Act No. 3326 was passed on December 4, 1926, preliminary investigation of criminal offenses
was being conducted by justices of the peace.

Considering that preliminary investigation in criminal case for purposes of prosecution has become
the exclusive function of the executive branch, the term “proceedings” should now be understood
either as executive or judicial in character: executive when it involves the investigation phase and
judicial when it refers to the trial and judgment stage. Hence, institution of proceeding, whether
executive or judicial, interrupts the running of prescriptive period. (Panaguiton v. Department of
Justice, G.R. No. 167571, November 25, 2008, People v. Pangilinan, G.R. No. 152662, June 13, 2012)

Note: The Jadewell case is not compatible with Panaguiton case, which is affirmed in Pangilinan case,
and other cases, because the former expressly reaffirmed the Zaldivia principle while latter expressly
abandoned it. For purpose of the bar exam, the Jadewell principle should be applied if the case
involved violation of ordinance. Jadewell should not be applied to offenses under special laws even
they are covered by the rules on summary procedure.

In People vs. Lee, G.R. No. 234618, September 16, 2019, the Supreme Court said that Jadewell
presents a different factual milieu as the issue involved therein was the prescriptive period for
violation of a city ordinance, unlike in the Pangilinan and other related cases, where the issue refers
to prescription of actions pertaining to violation of a special law. For sure, Jadewell did not abandon
the doctrine in Pangilinan as the former even acknowledged existing jurisprudence which holds that
the filing of complaint with the Office of the City Prosecutor tolls the running of the prescriptive
period.

3. The filing of complaint involving simple oral defamation with the prosecutor’s office interrupts the
running of period of prescription. Article 91 of the Revised Penal Code provides “the period of
prescription shall be interrupted by the filing of the complaint or information.” The filling of
compliant for preliminary investigation if the fiscal’s office interrupts the running of prescription of
simple slander because Article 91 does not distinguish whether the complaint is filed in the Office
of the Prosecutor for preliminary investigation or in court for action on the merits. (Francisco vs. CA,
G.R. No. L-45674, May 30, 1983)

Note: It should be noted that simple slander is covered by the Rules on Summary Procedure. In
People vs. Bautista, G.R. No. 168641, April 27, 2007, the Supreme Court applied the Francisco
principle to slight physical injuries, which is also covered by the Rules on Summary Procedure.

Jadewell case cannot be applied to prescription of felonies although they are covered by the Rules on
Summary Procedure. Jadewell is interpreting Act No. 3326, which governs violation of ordinance
while Francisco and Bautista are interpreting Article 91 of the Revised Penal Code, which is rule on
prescription of felonies such as oral defamation and slight physical injuries.
For corruption under R.A. No. 3019 as amended by R.A. No. 10910, the prescriptive period is 20
years. For sexual harassment under RA No. 7877, the prescriptive period is 3 years. Act No. 3326
does not apply to corruption and sexual harassment with regards to the rules on period of
prescription since R.A. No. 3019 and R.A. No. 7877 provide a special rule on the period of
prescription. However, Act No. 3326 on the rule of commencement and interruption of the running
of prescriptive period is still applicable to corruption under R.A. No. 3019, and sexual harassment
under RA No. 7877. Thus, the period of prescription will be interrupted upon the filing of complaint
for preliminary investigation for violation of RA No. 3019 with the Ombudsman (Disini v.
Sandiganbayan, G.R. Nos. 169823-24 and 174764-65, September 11, 2013) for sexual harassment
with the prosecutor’s office. (People vs. Lee, G.R. No. 234618, September 16, 2019)

PROBATION - Accused is charged of sale of dangerous drugs. Pursuant to a plea-bargaining

agreement, he pleaded guilty to the lesser offense of possession of drug paraphernalia, which is
punishable 6 months and 1 day to 4 years. Sale of dangerous drugs is not probationable. However, in
applying for probation, what is essential is not the offense charged but the offense to which the
accused is ultimately found guilty of. In sum, in determining the eligibility of the accused for
probation, the court shall consider possession of drug paraphernalia for which he pleaded guilty, and
not sale of dangerous drugs with which he is charged. Possession of drug paraphernalia is
probationable since the penalty prescribed for it does not exceed 6 years of imprisonment. Under
Section 24 of RA No. 9165, any person convicted for drug trafficking or pushing cannot avail of the
privilege granted by the Probation Law. However, possession of drug paraphernalia is not considered
as drug trafficking or pushing. Hence, the accused is eligible to apply for probation. (Pascua vs.
People, G.R. No. 250578, September 07, 2020)

Offense where the penalty is more than 6 years of imprisonment is non- probationable. In Colinares
vs. People, G.R. No. 182748, December 13, 2011, the accused, who was convicted by the lower court
of a non-probationable offense of frustrated homicide, but on appeal was found guilty of a
probationable offense of attempted homicide, may apply for probation. In Villareal vs. People, G.R.
No. 151258, December 1, 2014, accused was convicted of homicide, a non- probationable crime, by
the trial court. However, the SC found them liable for reckless imprudence resulting in homicide,
which is a probationable crime, because of lack of dolo. They can still apply for probation. RA No.
10707 has amended Section 4 of PD 968 by adopting the Colinares and Villareal. Under this provision,
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.
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.

In Hernan vs. Honorable Sandiganbayan, G.R. No. 217874, December 5, 2017, accused was convicted
of malversation and sentenced to suffer a penalty of 11 years, 6 months and 21 days of prision
mayor, which is non-probationable. The judgment becomes final prior to the effectivity of RA No.
10951. Under Article 217 of RPCas amended by RA No. 10951, the penalty for malversation involving
an amount of not exceeding P40,000 is only prision correccional in its medium and maximum
periods. Despite the immutability of a final judgment, the Supreme Court reduced the penalty to 3
years, 6 months and 20 days of prision correccional in accordance with RA No. 10951, which penalty
is now probationable. It was stated that because of RA No. 10951, not only must sentence of the
accused be modified respecting the settled rule on the retroactive effectivity of favorable laws, she
may even apply for probation. In sum, applying Section 4 of P.D. No. 968, as amended by R.A. No.
10707, since the judgment of conviction imposing a non-probationable penalty is modified through
the imposition of a probationable penalty, she is now allowed to apply for probation based on the
modified decision before such decision becomes final. (see: Aguinaldo vs. People, G.R. No. 226615,
January 13, 2021)

PIRACY - Under Section 2(a) of PD 532, "Philippine waters" is defined as bodies of water, such as but
not limited to, seas, gulfs, bays around, between and connecting each of the Islands of the Philippine
Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters belonging
to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves,
and other submarine areas over which the Philippines has sovereignty or jurisdiction. Thus, a river in
a municipality is considered as part of Philippine waters for purpose of piracy (People vs. Dela Pena,
G.R. No. 219581, January 31, 2018).

DIRECT ASSAULT – Simple assault (e.g., punching) upon an agent of a person in authority (e.g., police
officer) while engaged in the performance of duty constitutes simple resistance and not direct assault
because there is no intent to defy the law and its representative at all hazard, which is an element
thereof (U.S. vs. Tabiana, G.R. No. 11847, February 1, 1918; U.S. vs. Agustin, G.R. No. 13083,
December 11, 1917; People vs. Lapitan, G.R. No. 38226, November 17, 1933). But serious assault
upon agent of a person in authority while engaged in the performance of duty constitutes direct
assault (U.S. vs. Cox, G.R. No. 1406, January 6, 1904; U.S. vs. Samonte, G.R. No. 5649, September 6,
1910).

Simple assault (e.g., punching) upon a person in authority (e.g., mayor or chief of police) while
engaged in the performance of duty constitutes qualified direct assault. The law does not distinguish
between serious and simple “laying of hands” upon a person in authority as a qualifying
circumstance. Hence, a simple laying of hands upon a person in authority constitutes qualified direct
assault. The Tabiana principle is only applicable if the victim is an agent of a person in authority (U.S.
vs. Gumban, G.R. No. 13658, November 9, 1918).

The accused, an America soldier, seized the complainant, a police officer, by the throat, threw him to
the ground, and struck him several blows with the club which he succeeded in wresting from the
policeman. He was convicted of direct assault. (United States v. Cox, supra) Police officers including
the complainant rushed to stop the fight between groups of women. However, accused, intoxicated,
shouted at them, "Wala kayo pakialam sa akin, hindi aka sasama sa inyo." She then grabbed
complainant by the collar, slapped his cheek, and kicked his legs several times. Complainant suffered
minor injuries. The accused was convicted of simple resistance although he was charged with direct
assault. Simple resistance is necessary included in the charge of direct assault (Mallari vs. People,
G.R. No. 224679, February 12, 2020, Justice Leonen)

If the person in authority or his agent is engaged in the actual performance of duties at the time of
the assault, the motive for the assault is immaterial. Direct assault is committed even if the motive
(such as non-payment of loan) was totally foreign to victim’s official function (Sarcepuedes vs.
People, G.R. No. L-3857, October 22, 1951).

The phrase "on occasion of such performance" used in Article 148 of RPC means "by reason of the
past performance of official duty because the purpose of the law is to allow them to discharge their
duties without fear of being assaulted by reason thereof (People vs. Renegado, G.R. No. L-27031,
May 31, 1974). Attacking a judge on the street by reason of past performance of duty (such as citing
the accused in contempt) constitutes qualified direct assault (U.S. vs. vs. Garcia, G.R. No. 6820,
October 16, 1911). But attacking a retired judge by reason of past performance of duty is not direct
assault since he is not a person in authority at the time of the assault. Note: The mandatory
retirement age of a judge is 70 year. The status of lawyer as persons in authority remains even the
assault is committed outside the court room as long as it is perpetrated by reason of the
performance of their professional duties (Records of the Batasan, Volume Four, 1984-1985 of BP Blg.
873, which amended Article 152 of RPC).

Attacking a third person who comes to the aid of a person in authority, who is a victim of direct
assault, is liable for direct assault upon an agent of a person in authority. Attacking a third person
who comes to the aid of an agent of person in authority, who is a victim of direct assault, is liable for
indirect direct assault. Attacking a third person who comes to the aid of an agent of person in
authority, who is a victim of simple resistance, is liable for physical injuries.

Slapping and pushing a public-school teacher, a person in authority, against a wall divider, while
engaged in the performance of duty is direct assault. Accused initiated her tirades against the
teacher. The fact that the teacher retaliated by similar verbal invectives against the accused, does
not mean that she as a person in authority already descended to the level of a private person. If the
victim suffered abortion, the offender is liable for complex crime of direct assault with unintentional
abortion since single act of assaulting a person in authority constitutes two crimes. However, in this
case, the prosecution failed to prove that the proximate cause of the abortion is the commission of
direct assault since no doctor, who examined her, was not presented as witness to testify on the
causal connection between the two (Gelig vs. People, G.R. No. 173150 July 28, 2010).

Killing a mayor or police officer while in the performance of his duty constitute a complex crime of
direct assault with murder (People vs. Siega, G.R. No. 213273, June 27, 2018) or homicide. ( People
vs. Pitulan, G.R. No. 226486, January 22, 2020, Justice Leonen)

BRIBERY - Plaintiff gave money to the judge, who in consideration thereof subsequently rendered an
unjust decision in favor of the former. The judge is liable of direct bribery (Mangulabnan vs. People,
G.R. No. 236848, June 8, 2020) and rendering unjust decision, while the plaintiff is liable of
corruption of public officer. But if the plaintiff gave money to the judge, who subsequently rendered
a decision against the former, the crime committed by the judge is indirect bribery while the plaintiff
is liable of corruption of public officer. The judge is not liable of direct bribery since rendering a
decision against the corruptor indicates that the former did not receive the money in consideration
of rendering a decision in favor of the latter. It seems that the plaintiff merely gave the money to the
judge by reason of his position as such.

MURDER - The killing of a child is characterized by treachery even if the manner of the assault
is not shown in the Information, as the weakness of the victim due to his tender age results in the
absence of any danger to the accused. Hence, the mere allegation of the victim's minority is
sufficient to qualify the crime to murder. (People vs. Enojo, G.R. No. 240231, November 27, 2019)

RAPE – There are two kinds of rape: (1) rape through sexual intercourse; and (2) rape through sexual
assault. However, the Supreme Court in People vs. Tulugan, G.R. No. 227363, March 12, 2019 said
that rape through sexual intercourse should be called as “rape” while rape through sexual assault
should be called as “sexual assault.”

Rape, which is commonly denominated as “organ rape” or “penile rape,” is committed by a man by
having carnal knowledge with a woman. This is a gender crime since the offender must be a man
while the victim must be a woman.

On the other hand, there are three kinds of sexual assault, to wit: (1) instrument or object sexual
assault, which is committed by inserting an instrument or object into the genital or anal orifice of
another person; (2) sexual assault through oral intercourse, which is committed by inserting his penis
into another person’s mouth; and (3) sexual assault through sodomy, which is committed by inserting
his penis into another person’s anal orifice. In sexual assault, the gender of the offender and the
victim is not material. That is why this crime is called “gender-free sexual assault.” (see: People v.
Soria, G.R. No. 179031, November 14, 2012) However, the modes (e.g., intimidation) or
circumstances (e.g., demented victim) in committing the crime and the qualifying circumstances are
the same whether the crime is rape or sexual assault.

It is already a settled rule that a finger or tongue is an instrument or object; hence inserting a finger
or tongue into genital orifice is sexual assault (People v. Chingh, G.R. No. 178323, March 16, 2011;
(People vs. Bonaagua, GR No. 188897, June 6, 2011). However, Justice Leonen in his dissenting
opinion in People v. Caoili, G.R. No. 196342, August 8, 2017 said that nonconsensual insertion of a
finger in another's genitals is rape by carnal knowledge; the finger, when used in a sexual act, is not
an instrument or an object. It is as much a part of the human body as a penis; When consensual, it
can be used to give sexual pleasure. When forced, it can be used to defile another's body; Equating
the finger to a separate instrument or object misunderstands the gravity of the offense.

Absorption rule - If the accused commits rape and acts of lasciviousness, the latter is absorbed by the
former (People vs. Dy, G.R. Nos. 115236-37, January 29, 2002). But the doctrine of absorption is not
applicable to rape and sexual assault. Inserting lighted cigarette into the genital orifice and anal
orifice of the victim and raping her constitutes two separate crimes of sexual assault and rape
(People vs. Crisostomo, GR No. 196435, January 29, 2014). Inserting the penis into the mouth of the
victim and into her genital orifice constitutes separate crimes of sexual assault and rape (People vs.
Espera, G.R. No. 202868, October 2, 2013; People vs. Dereco, G.R. No. 243625, December 2, 2020)

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 vs.
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 vs. 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 vs. 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 consummate the purpose which he has in mind (People vs. Olesco, G.R.
No. 174861 April 11, 2011; People vs. Nachor, G.R. No. 177779, December 14, 2010). 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 vs. 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
(G.R. No. 176740 June 22, 2011, People v. Dumadag).

Resistance against sexual advance may establish lack of consent. Hence, rape is committed. On the
other hand, lack of resistance may sometimes imply consent. However, that is not always the case.
While it may imply consent, there are circumstances that may render a person unable to express her
resistance to another's sexual advances. Thus, when a person has carnal knowledge with another
person who does not show any resistance, it does not always mean that that person consented to
such act. Lack of resistance does not negate rape. (People vs. Ibanez, G.R. No. 231984, July 6, 2020)

Intimidated person and retarded person - If the information alleged force, threat, or intimidation
without averment of any mental disability on the part of the victim, the accused can still be convicted
provided that sexual congress and mental incapacity, i.e. the incapacity to give consent, are proven
by clear and convincing evidence (People vs. Quintos, G.R. No. 199402, November 12, 2014; Justice
Leonen; People vs. Gilles, G.R. No. 229860, March 21, 2018). Having sexual intercourse with a
mentally retarded person is equivalent to having sexual intercourse with a person through
intimidation. If the Information alleged intimidation as a mode of raping the victim, but the evidence
merely proves her mental retardation, the accused can be convicted of rape through intimidation.
(People v. Balatazo, G.R. No. 118027, January 29, 2004)

Person deprived of reason and demented person - There are two victims in rape with mentally
disability, to wit: (1) persons deprived of reason; and (2) demented person. The concept of the terms
“deprived of reason” is comprehensive since it includes demented or insane person and mentally
retarded person. On the other hand, the term "demented" is confined to insane person. If the victim
is insane, the accused can be charged with rape of person deprived of reason or demented person. If
the victim is mentally retarded, the accused should be charged with rape of a person deprived of
reason (People vs. Eleuterio, G.R. No. 219957, April 4, 2018) or statutory rape of a person under 12
years of age (People v. Daniega, G.R. No. 212201, June 28, 2017).

Retarded person and demented person - Describing a mentally retarded person in the information as
demented is improper. A mentally retarded person is not insane or demented. However, describing
the victim in the information as a "mentally defective woman” (People vs. Martinez, G.R. No. 226394,
March 7, 2018), or “a demented person whose mental age is below 7 years old” (People v. Caoile,
G.R. No. 203041, June 5, 2013) is sufficient compliance with the constitutional mandate that an
accused be informed of the nature of the charge against him.

If the Information alleged the victim of rape is demented, but the evidence merely proves her mental
retardation, the accused cannot be convicted of rape unless the accused failed to raise the mistake in
the Information as an objection (People v. Ventura, Sr., G.R. No. 205230, March 12, 2014; People vs.
Eleuterio, G.R. No. 219957, April 04, 2018)

Deaf-mute - Information alleged that accused had sexual intercourse with the complainant, who
suffered physical defect (hearing impaired) against her will. The Information does not validly charge
the crime of rape or any offense at all. Surely, being a deaf-mute does not necessarily take the place
of the element of force or intimidation or having been deprived of reason, unconscious, or
demented. (People vs. Cubay, G.R. No. 224597, July 29, 2019)

Qualifying circumstance - If the relationship between the accused and the victim of rape is uncle and
niece, the Information must allege that the offender is “a relative by consanguinity or affinity within
the third civil degree” because there are niece-uncle relationships which are beyond the third civil
degree. However, a sister-brother relationship is obviously in the second civil degree. Consequently,
it is not necessary that the Information should specifically state that the accused is a relative by
consanguinity within the third civil degree of the victim (People vs. Ceredon, G.R. No. 167179,
January 28, 2008).

Assuming that accused and victim had a romantic relation, carnal knowledge with victim, even if
consensual, would amount to rape due to her mental disability. Knowledge victim's mental
retardation is not an element for the charge of rape. However, knowledge of her mental condition is
important for purposes of qualifying the charge of rape. (People vs. Martinez, G.R. No. 226394,
March 7, 2018)

Knowledge of the mental disability of the victim is not an element of rape (People vs. Caoile, GR No.
203041, June 5, 2013) but it is an ingredient of the qualifying circumstance of mental disability, which
must be alleged in the information (People vs. Obogne, GR No. 199740, March 24, 2014; People vs.
Lascano, G.R. No. 192180, March 21, 2012; People v. Madeo, G.R. No. 176070 October 2, 2009)

Relationship or minority alone is not enough to qualify rape. In qualified rape, there must be a
concurrence of relationship and minority. Relationship includes the third civil degree of
consanguinity or affinity in order to qualify rape. In this case, the accused is the cousin of the victim's
father. Their relationship is fifth degree. Hence, the crime is only simple rape. (People vs. XXX, G.R.
No. 232308, October 7, 2020)

In qualifying circumstances of minority and relationship in rape and special aggravating circumstance
in sexual abuse under RA No. 7610, the guardian must be a person who has legal relationship with his
ward. He must be legally appointed was first (People vs. Flores G.R. No. 188315, August 25, 2010).

The accused and victim have step-relationship if the former and mother of the latter is married;
without marriage, their relationship is common-law. If the information alleged that the accused is the
step-father of the victim, but the evidence shows he is the common law husband of her mother there
being no marriage certificate presented, the qualifying circumstance of relationship and minority
cannot be appreciated in rape. (People vs. Tuyor, G.R. No. 241780, October 12, 2020; People vs. XXX,
G.R. No. 240441, December 04, 2019)
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 vs. 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)

In People vs. Perez, G.R. No. 201414, April 18, 2018, and People vs. ZZZ, G.R. No. 229209, February
12, 2020, the Supreme Court through Justice Leonen affirmed the Amarela principle, which
abandoned the Maria Clara principle. Justice Leonen also cited the Amarela principle in People vs.
Tulugan. For purpose of the 2021 Bar Exam, it is advisable that the Amarela principle should be
followed.

Non-decriminalization of acts of lasciviousness - Under Article 336 of the Revised Penal Code, acts of
lasciviousness is committed by any person upon other persons of either sex, under any of the
circumstances mentioned in the preceding article. The words “preceding article” in Article 336
pertains to Article 335 on old version of rape. According to Justice Leonen, Section 4 of RA No. 8353
(the Anti-Rape Law) expressly repealed Article 335 of the Revised Code on rape. Since the
circumstances under which acts of lasciviousness is committed, are sourced from a repealed Article
335 of the Code, Article 336 of the Code on acts of lasciviousness has been rendered incomplete and
ineffective by RA No. 8353.

The opinion of Justice Leonen is not a controlling rule. Several cases rendered by the Supreme Court
affirmed the conviction of the accused for acts of lasciviousness. In other words, RA No. 8353 did not
decriminalize acts of lasciviousness on the basis of prevailing jurisprudence. According to the
Supreme Court in People vs. Tulugan, G.R. No. 227363, March 12, 2019, it is erroneous to claim that
acts of lasciviousness can no longer be prosecuted under the Revised Penal Code. The
decriminalization of acts of lasciviousness, as per Justice Leonen's theory, would not sufficiently be
supplanted by RA No. 7610 and RA No. 9262. Section 4 of RA No. 8353 did not expressly repeal
Article 336 of the Code; it only states that Article 336 of the Code inconsistent with or contrary to the
provisions thereof are deemed amended, modified or repealed, accordingly. There is nothing
inconsistent between the provisions of Article 336 of the Code, and RA No. 8353, except some acts of
lasciviousness (e.g. sodomy) are now punishable as sexual assault. Article 336 of the Code is still a
good law despite the enactment of RA No. 8353 for there is no irreconcilable inconsistency between
their provisions. When the lascivious act does not constitute rape or sexual assault under RA No.
8353, then Article 336 of the Code on acts of lasciviousness is applicable.
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, but the crime proven is sexual assault, the accused cannot be convicted
of the latter. The variance rule is not applicable since sexual assault is not necessarily included in the
charge of rape. The elements of these two crimes are materially and substantially different. (People
vs. Dereco, G.R. No. 243625, December 02, 2020) In such case, the accused will be convicted of acts
of lasciviousness (People vs. Pareja, GR No. 202122, January 15, 2014; People vs. Caoili, G.R. No.
196342, August 08, 2017); or acts of lasciviousness under RPC in relation to RA No. 7610 (People vs.
Dagsa, G.R. No. 219889, January 29, 2018); or lascivious conduct under RA No. 7610 (People vs. ZZZ,
G.R. No. 224584, September 04, 2019). Acts of lasciviousness or lascivious conduct is necessarily
included in the charge of rape.

If the crime charged is acts of lasciviousness, but the crime proven is sexual assault, he will be
convicted of the lesser crime of acts of lasciviousness. Sexual assault is a crime undoubtedly greater
than acts of lasciviousness. While it is true that the crime of acts of lasciviousness is necessarily
included in the crime of sexual assault, the crime of sexual assault however is not subsumed in the
crime of acts of lasciviousness. (People vs. Jagdon, Jr., G.R. No. 242882, September 09, 2020)

If the information alleged the elements of both sexual assault and rape, and the crime proven is
sexual assault, the accused can be convicted of sexual assault. In People vs. Fruelda, G.R. No. 242690,
September 3, 2020, AAA testified that while accused was moving his finger in and out of her private
part through the opening of her pants' zipper, he took out his penis and massaged the same. Shortly
thereafter, AAA lost consciousness. When she woke up, she was seated on the floor with her
underwear and pants pulled down to her knees. Based on the foregoing, the crime committed by
accused is sexual assault. Although it is possible that accused had carnal knowledge of AAA while the
latter was unconscious, he cannot be convicted of the crime of rape by carnal knowledge based on a
mere possibility. Note: In this case, the information alleged the elements of sexual assault and rape.

Double jeopardy - The Regional Trial Court convicted the accused of attempted rape. Finding that
there is no intent to have sex, the Court of Appeals modified the decision of the lower court and
downgraded the conviction to acts of lasciviousness. By convicting the accused of acts of
lasciviousness, the Court of Appeals technically acquitted the accused of attempted rape, which is
already final and unappealable. Thus, double jeopardy has already set in and Solicitor General is
already barred from assailing his acquittal of attempted rape. (People vs. Arcega, G.R. No. 237489,
August 27, 2020) In sum, the Supreme Court cannot upgrade the conviction from acts of
lasciviousness to attempted rape if the petition for review was filed by the people through the Office
of the Solicitor General.

The Regional Trial Court convicted the accused of sexual assault with the qualifying circumstance that
the victim is under 7 years old. Finding lack of insertion of the finger of the accused into the vagina of
the victim, the Court of Appeals downgraded the conviction to attempted qualified sexual assault,
and sentenced him to suffer a maximum penalty of 4 years and 2 months of prision correccional.
Finding lack of intent to insert his finger into her vagina, the Supreme Court convicted the accused of
acts of lasciviousness under RA No. 7610 and sentenced the accused to suffer a maximum penalty of
15 years, 6 months and 20 days of reclusion temporal (Lutap vs. People, G.R. No. 204061, February 5,
2018) Since the penalty for acts of lasciviousness under RA No. 7610 is higher than that for
attempted qualified sexual assault, the Supreme Court in effect upgraded the conviction of the
accused. In sum, the Supreme Court can upgrade the conviction if the petition for review was filed by
the accused.

Accused should not appeal for the sake of appealing. If the accused through his counsel appealed his
case or filed a petition for review, he is waiving his right against double jeopardy and exposing
himself to a possible upgrading of his conviction. In the case of Lutap, the Supreme Court increases
the penalty from a probationable penalty of prision correccional to a non-probationable penalty of
reclusion temporal.

DEPRIVATION OF LIBERTY - Failure to judicially charge within the prescribed period renders the
public officer effecting the arrest liable for the crime of delay in the delivery of detained persons
under Article 125 of the Revised Penal Code. If the warrantless arrest was without any legal ground,
the arresting officers become liable for arbitrary detention under Article 124. However, if the
arresting officers are not among those whose official duty gives them the authority to arrest, they
become liable for illegal detention under Article 267 or 268. If the arrest is for the purpose of
delivering the person arrested to the proper authorities, but it is done without any reasonable
ground or any of the circumstances for a valid warrantless arrest, the arresting persons become liable
for unlawful arrest under Article 269. (Duropan vs. People, G.R. No. 230825, June 10, 2020, Justice
Leonen)

Offender in arbitrary detention and illegal detention - Arbitrary detention is committed by a public
officer, who has the authority to arrest and detain a person. Thus, a police officer, judge or mayor
can commit arbitrary detention. On the other hand, illegal detention is committed by private
individual. A public officer (e.g., stenographer) who has no authority to arrest or detain a person, is a
private individual for purpose of illegal detention since he committed the act in his private capacity.
(Duropan vs. People, G.R. No. 230825, June 10, 2020, Justice Leonen) But although a public officer
(e.g., police officer) has the authority to arrest and detain a person, he can be considered as a private
individual for purpose of illegal detention if the crime is committed in his private capacity. (People v.
Santiano, G.R. No. 123979, December 3, 1998)

The accused can be held liable for arbitrary detention if the following circumstances concur (1) he is a
public officer, who has the authority to arrest or detain a person; (2) he committed the act in his
official capacity; (3) the mind of the accused police officer is to investigate or prosecute the victim for
being a criminal suspect; and (4) the arrest was made without legal grounds in violation of the
constitutional right of the suspect against unreasonable seizure. If the mind of the police officer is to
kill or kidnap the criminal suspect for ransom, he is not liable for arbitrary detention. Detention will
be treated has having been committed in his private capacity.

The element of “in pursuit of his duty to arrest” in arbitrary detention is present if the purpose of the
arrest is: (1) To deliver the suspect to judicial authority (U.S. v. Gellada, G.R. No. L-5151, January 31,
1910); (2)To conduct criminal investigation (U.S. v. Agravante, G.R. No. 3947, January 28, 1908); or
(3)To determine if the victim committed a crime. (U.S. v. Hawchaw, G.R. No. L- 6909, February 20,
1912)

Thus, a police officers, who detained a suspected drug trafficker and demanded ransom payment,
committed the criminal act in their private capacity. (People v. Gonzalez, Jr., G.R. No. 192233,
February 17, 2016) Detaining any private person for the purpose of extorting any amount of money
could not, in any way, be construed as within their official functions of police officers. Their badges or
shields do not give them immunity for any criminal act. (People vs. Popionco, G.R. No. 200512, June
07, 2017, Justice Leonen) Hence, they are liable for kidnapping for ransom and not arbitrary
detention. Even the subsequent prosecution of the kidnapped victim for sale of dangerous drugs
does not negate the criminal liability of the accused for the crime the latter committed against the
former. (People vs. Borja, G.R. No. 199710, August 02, 2017, Justice Leonen).

In People v. PO1 Trestiza, G.R. No. 193833, November 16, 2011, the public prosecutor filed a motion
to withdraw information for kidnapping before the trial court and filed a new one for robbery.
According to the public prosecutor, the accused, a police officer, cannot be charged with kidnapping
because the crime may only be committed by private individuals. The trial court denied the motion to
withdraw. It examined the Pre Operation/Coordination Sheet presented by the defense and found
that it was neither authenticated nor its signatories presented in court. The defense failed to show
proof of a "legitimate police operation" and, based on Santiano, the accused were deemed to have
acted in a private capacity in detaining the victims. The Supreme Court affirmed the conviction of the
police officers for kidnapping.

In People v. Santiano, G.R. No. 123979, December 3, 1998, it was held that the fact that they are
police officers would not exempt them from the criminal liability for kidnapping instead of arbitrary
detention. Taking the prisoner to a secluded place for purposes of detaining and maltreating him
constitutes kidnapping and serious illegal detention qualified by the circumstance of serious physical
injuries. Arbitrary detention is not committed since the accused did not commit the act in
furtherance of official function or in the pursuit of authority vested in them. In sum, they committed
the act in their purely private capacity.

In Osorio v. Navera, G.R. No. 223272, February 26, 2018, Justice Leonen), it was held that it is not
impossible for a public officer to be charged with and be convicted of kidnapping as Santiano and
Trestiza illustrated. Thus, a soldier, who abducted a UP student and detained her at military camps,
barangay hall and a resort or safehouse, can be charged with kidnapping and serious illegal
detention. The civil court and not military court has jurisdiction over the case since this crime is not
service connected. Kidnapping should never be part of the functions of a soldier. It cannot be done in
a soldier's official capacity.

Other view: In People vs. Dongail, G.R. No. 217972, February 17, 2020, accused, policemen taken the
victims, who were the subject of surveillance for alleged involvement in the illegal drug trade. The
victims were brought of various motels and interrogated them before finishing them off. It was held:
The victims were detained for fifteen days before getting killed. Hence, when the three were
abducted and placed in the custody of accused, the felony of arbitrary detention had already been
consummated. The elements of arbitrary detention were present because accused were police
officers who deprived the three victims of liberty on a mere surveillance and without legal grounds.
Thereafter, when they were boxed, kicked, pistol-whipped and ultimately shot at a close range, while
being handcuffed and without means to defend themselves, another separate crime of murder was
committed. Therefore, a conviction for the separate crimes of arbitrary detention and murder was in
order. Dongail case is not compatible with Trestiza case, Santiano case, Osorio case. If the principle in
Trestiza, Santiano, and Osorio was followed in the Dongail case, the accused should have been
charged and convicted of special complex crime of kidnapping with murder.

ARREST – Arrest is the taking of a person into custody in order that he may be bound to answer for
the commission of an offense. It is "an actual restraint of a person to be arrested, or by his
submission to the custody of the person making the arrest. There need not be an actual restraint for
curtailment of liberty to be characterized as an "arrest. Although denominated as requests,
invitations from high-ranking officials to a hearing in a military camp were deemed arrests. ( Duropan
vs. People, supra, Justice Leonen)
Arrest and invitation - Although denominated as requests, invitations from high-ranking officials to a
hearing in a military camp were deemed arrests. This Court characterized them as authoritative
commands which may not be reasonably expected to be defied. (Sanchez vs. Demetriou, G.R. Nos.
111771-77 November 9, 1993)

When the accused is in an environment made hostile by the presence and actuations of law
enforcers where it can be reasonably inferred that they had no choice except to willingly go with
them, then there is an arrest. The subjective view of the accused will be relevant—which includes
among others—their station in life and degree of education. (Duropan vs. People, supra, Justice
Leonen)

In People v. Milado, G.R. No. 147677, December 1, 2003, accused was carrying bricks of marijuana in
his backpack aboard a jeepney. Acting upon an information that there was a person transporting
marijuana in the jeepney, the police officers set up a checkpoint. In the checkpoint, the police
identified accused and told him to stay inside the jeepney. They subsequently brought him to the
police station, where they ordered him to open his bag where the marijuana was kept. Although no
"formal arrest" had yet been made, it is clear that appellant had already been deprived of his liberty
and taken into custody after the policemen told him to stay inside the jeepney and instructed the
driver to drive them to the police station. The term "invited" may have been used by the police, but it
was obviously a command coming from three law enforcers who appellant could hardly be expected
to defy.

An arrest although described as a mere invitation to the police station, can be a source of unlawful
arrest or arbitrary detention.

Arrest with legal grounds - If a person arrested another person with legal ground, he is not
committing a crime since the apprehension is made in accordance with Section 5, Rule 113 of the
Rules of Criminal Procedure.

Arrest without legal grounds - Intent to deliver a person to judicial authority is established if the
offender brought him to the police station for investigation. In other words, arresting a person or
arresting in the form of invitation is an evidence that the offender has the intention to make a judicial
delivery of the arrestee. If the offender, arrested a person without legal grounds, the crime of illegal
detention should be ruled out. The act of conducting the apprehended persons to the proper
authorities takes the offense out of the crime of illegal detention. (Duropan vs. People, G.R. No.
230825, June 10, 2020, Justice Leonen) However, the person, who arrested the suspect without legal
grounds, is liable for arbitrary detention or unlawful arrest.

If the offender is a public officer with authority to arrest and detain a person, the crime committed is
arbitrary detention. (U.S. v. Gellada, G.R. No. L- 5151, January 31, 1910; U.S. v. Agravante, G.R. No.
3947, January 28, 1908) If the offender is a private individual or a public officer without authority to
arrest and detain a person, the crime committed is unlawful arrest.

In US vs. Fontanilla, G.R. No. 4580, September 7, 1908, accused found complainant, and several
laborers tilling his land. One of the complainants insisted that the land was his brother's. A fight
ensued, which ended when accused captured and tied complainants with a rope. He then brought
them to the municipal jail. It was held that the fact that the accused, after he had apprehended the
complainants, immediately conducted them to the municipal jail, and thus turned them over to the
authorities, takes the offense out of that provision on illegal detention and brings it within the
purview of provision on unlawful arrest.
In Duropan vs. People, supra, Justice Leonen), Accused were barangay kagawad and barangay
tanod. Complainants are members of Alimango cooperative, which is authorized to develop, utilize,
and protect a mangrove-nipa area. Its members cut, gather, and weave nipa palms. Accused saw
complainants harvesting nipa palm and asked them who gave authority to harvest. Pacis, one of the
complainants, replied that they were Alimango members. The accused arrested them and brought
them to Police Station. They are liable for unlawful arrest. Barangay kagawad and barangay tanod are
person in authority and agent of a person in authority, respectively. They are not the public officers
whose official duty is to arrest or detain persons. They arrested complainants without legal grounds.
Upon hearing a reasonable explanation as to why Pacis was harvesting the nipa leaves, accused had
no reason to suspect any wrongdoing. Accused knew Pacis and are familiar with ALIMANGO. Since it
was easy to verify if he was indeed a member of the group, prudence dictated that they first
investigate. Had it turned out that he was not a member, a warrant of arrest could have been
obtained as they witnessed the commission of the crime.

FALSIFICATION – Commercial documents such as promissory note and check are, in general,
documents or instruments which are "used by merchants or businessmen to promote or facilitate
trade or credit transactions (Tanenggee vs. People, G.R. No. 179448 June 26, 2013).

Falsification of a public document is consummated upon the execution of the false document. What
is punished in falsification of public document is principally the undermining of the public faith and
the destruction of truth as solemnly proclaimed therein. The fact that accused did not benefit from,
or that the public was not prejudiced by the falsified resolution is not a defense (Goma vs. CA, G.R.
No. 168437, January 08, 2009).

Making it to appear - In Constantino vs. People, G.R. No. 225696, April 08, 2019, Justice Leonen
accused, a notary public, was charged of falsification of document by making it appear that Dr.
Asuncion participated in execution of the acknowledgement of the will and testament by signing it as
a witness, where in fact he did not sign it. However, it was established that DR. Asuncion at the
urging of Ferrer, his son-in-law, signed the acknowledgement after the notarization. Therefore, it was
not accused who made it appear that Dr. Asuncion participated in the execution of the Joint
Acknowledgment, but Ferrer and Dr. Asuncion himself. Accused is not liable for falsification of
document. However, accused should be administratively sanctioned for failure to cross out Dr.
Asuncion's name when he notarized the Joint Acknowledgment, which has allowed Dr. Asuncion to
still sign the document despite not having participated in its due execution.

Alteration - The local chief executive may veto the ordinance and submit his objections to the
sanggunian. However, the accused, a mayor, neither approved nor vetoed the ordinance. He
intervened in the process by changing the wordings of the whereas clause of the municipal
ordinance. This is falsification of document by making any alteration or intercalation in a genuine
document which changes its meaning. (Tadena vs. People, G.R. No. 228610, March 20, 2019)

Untruthful statement - Accused, a public officer, issued Temporary Operating Permit to his own son,
and made an untruthful statement on the birthday of his son to make it appear that his son is of legal
age. Accused insists on his plea that he had no malicious or wrongful intent to injure a third person.
He was convicted of falsification of public document. Intent to gain or intent to injure is not an
element of the crime of falsification of public document. Thus, lack of intent to gain or injure is not a
valid defense. (Liwanag vs. People, G.R. No. 205260, July 29, 2019)

Prosecution need not identify a specific law under which the accused has the obligation to disclose
the truth. To convict the accused for falsification of document involving making an untruthful
statement, what is important is that he has a legal obligation to disclose the truth. In Manansala vs.
People, G.R. No. 215424, December 9, 2015, the accused made an untruthful statement in petty cash
replenishment report of a private corporation. The accused was convicted of falsification of private
document because he has a legal obligation to disclose the truth in a report.

Notary public - The element that “the notary public takes advantage of his official position” is
presumed when the falsity allegedly committed by him pertains to the notarization, since only
notaries public have the duty and authority to notarize documents. (Constantino vs. People, G.R. No.
225696, April 08, 2019, Justice Leonen)

Bank officer - If the accused is an employee or officer of the bank other than the president, e.g., bank
manager, and he made a fictitious loan by falsifying loan application, check and other commercial
document, he is liable for complex crime of estafa by means of false pretense through falsification of
commercial documents. (Tanenggee v. People, G.R. No. 179448, June 26, 2013)

If the accused is a president of the bank, and he made a fictitious loan by falsifying loan applications
and other commercial documents, he could be held liable either for (1) complex crime of estafa by
means of false pretense through falsification of commercial documents; or (2) complex crime of
estafa by misappropriation through falsification of commercial documents.

In Soriano vs. People, G.R. No. 240458, January 8, 2020, the bank president made fictitious loans by
falsifying loan applications and other commercial documents. The accused used the proceeds thereof
for his personal benefit. He falsified commercial documents by making it appear that a fictitious
borrower is securing loan from the bank. He used these falsified documents to defraud the bank to
release the money. He is liable for complex crime of estafa by means of false pretense through
falsification of commercial documents.

In People v. Go, G.R. No. 191015, August 6, 2014, the bank president made fictitious loans by
falsifying loan applications and other commercial documents. The accused used the proceeds thereof
for his personal benefit. The bank president has obligation to administer the bank fund in a fiduciary
capacity. The bank is still the owner of the money despite the transfer thereof to the accused. By
using the money to pay his creditors, he committed estafa through misappropriation. Since
falsification of commercial documents is a necessary means to misappropriate the money, he was
convicted of a complex crime of estafa by misappropriation through falsification of commercial
documents.

Estafa through falsification of document - When the offender commits on a public, official or
commercial document any of the acts of falsification enumerated in Article 171 as a necessary means
to commit another crime like estafa, theft or malversation, the two crimes form a complex crime
proper (Tanenggee vs. People, G.R. No. 179448 June 26, 2013; Arias vs. People, G.R. Nos. 237106-07,
June 10, 2019)

Assistant Director of the Bureau of Equipment of DPWH, falsified official documents to defraud the
DPWH into paying the claims for fictitious emergency repairs or purchase of spare parts.
Malversation is not committed since the accused is not an accountable officer. Falsification of
document is a necessary means to commit estafa through false pretense since the accused used the
falsified official documents to defraud DPWH. Accused is liable for complex crime of estafa through
falsification of public document. (Arias vs. People, G.R. Nos. 237106-07, June 10, 2019)

The falsification of a public, official, or commercial document may be a means of committing estafa,
because before the falsified document is actually utilized to defraud another, the crime of
falsification has already been consummated, damage or intent to cause damage not being an
element of the crime of falsification of public, official or commercial document. In other words, the
crime of falsification has already existed. Actually, utilizing that falsified public, official or commercial
document to defraud another is estafa. But the damage is caused by the commission of estafa, not
by the falsification of the document. Therefore, the falsification of the public, official or commercial
document is only a necessary means to commit estafa (Tanenggee vs. People, G.R. No. 179448 June
26, 2013; People v. Go, G.R. No. 191015, August 6, 2014; Dela Cruz vs. People, G.R. No. 236807,
January 12, 2021)

In complex crime of estafa through falsification of a commercial, public or official document, before
the falsified document is actually used to defraud the victim, the crime of falsification has already
been consummated since damage or intent to cause damage not being an element of the crime of
falsification of public, official or commercial document. In other words, the crime of falsification has
already existed. Using that falsified public, official or commercial document to defraud another is
estafa. But the damage is caused by the commission of estafa, not by the falsification of the
document. (Desmoparan vs. People, GR. No. 233598, March 27, 2019)

FALSIFICATION AND OTHER CRIMES – If the offender committed falsification of document and other
crimes, the following rules should be observed:

1. Complex crime - When falsification of public, official or commercial document is a necessary

means to commit malversation (People vs. Barbas, G.R. No. L-41265, July 27, 1934), estafa (Ilumin vs.
Sandiganbayan, G.R. No. 85667, February 23, 1995; Intestate Estate of Gonzales vs. People, G.R. No.
181409, February 11, 2010; Ambito vs. People, G.R. No. 127327, February 13, 2009, Tanenggee vs.
People, G.R. No. 179448, June 26, 2013) or theft (People vs. Salonga, G.R. No. 131131, June 21,
2001), offender is liable for a complex crime under Article 48 of RPC.

2. Separate crimes – When falsification of public, official or commercial document is not a

necessary means to commit other crimes, this is not a complex crime. Thus, when falsification of
public, official or commercial document is a merely a means to conceal malversation (People vs.
Sendaydiego, G.R. Nos. L- 33252-54, January 20, 1978; People vs. Villanueva, G.R. No. 39047, October
31, 1933), estafa (People vs. Monteverde, G.R. No. 139610, August 12, 2002; People vs. Benito, G.R.
No. 36979, November 23, 1932) or theft, the crimes are separate.

3. Common element doctrine – Under the common element doctrine, the use of damage as an
element of falsification of private document precludes the re-use thereof to complete the elements
of estafa, and vice versa.

Damage is an element of estafa; damage is also an element of falsification of private document;

hence, the comment element principle is applicable since damage is a common element of both
crimes. Damage is an element of estafa; however, damage is not an element of falsification of public,
official or commercial document; hence, the comment element principle is not applicable since
damage is not a common element of both crimes. Damage is an element of falsification of private
document; however, damage is not an element of malversation; hence, the comment element
principle is not appliable since damage is not a common element of both crimes. In sum, common
element doctrine is only applicable if the crimes committed are falsification of private document and
estafa.

In Zoleta v. Sandiganbayan, G.R. No. 185224, July 29, 2015, the Governor caused the falsification of
private letter requesting for financial assistance. He was able to use this falsified private document to
release public funds to a fictitious beneficiary. Applying Article 48, since falsification of private
document is a necessary means to commit malversation, he is liable for complex crime of
malversation through falsification of private document. Note: The Supreme Court did not apply
common element doctrine since damage is not an element of malversation.

If the common element principle is applicable, the accused is liable for falsification of private
document or estafa. When falsification of private document is a necessary means to commit estafa,
the crime committed is falsification. When falsification of private document is not a means to commit
estafa, the crime committed is estafa. (People vs. Co, G.R. No. 233015, October 16, 2019)

If the falsification of a private document (demand letter, letter of guarantee, payroll of private
company or billing statement) is committed as a means to commit estafa, the crime committed is
falsification only. Under the common element doctrine, the use of damage as an element in
falsification of private document precludes the re-use thereof to complete the elements of estafa.
Hence, estafa is not committed because the element of damage is not present. There is no complex
crime of estafa through falsification of private document. (Batulanon vs. People, G.R. No. 139857,
September 15, 2006; U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917; People vs. Reyes, G.R. No.
L-34516, November 10, 1931; People vs. Co, G.R. No. 233015, October 16, 2019)

If a person commits falsification of private document (e.g., unofficial receipt) to conceal estafa, the
crime is estafa only. Under the common element doctrine, the use of damage as an element in estafa
precludes the re-use thereof to complete the elements of falsification. Hence, estafa is not
committed because the element of damage is not present (See: People vs. Beng, 40 O.G. 1913).

USE OF FALSIFIED DOCUMENT - The crime of use of falsified document, the person who used the
forged document is different from the one who falsified it. If the one who used the falsified
document is the same person who falsified it, the crime is only falsification and the use of the same is
not a separate crime. Falsification of a public document and use of false document by the same
person who falsified it constitute but a single crime of falsification. (Jayme vs. People, G.R. No.
248827, August 27, 2020)

MALVERSATION - For purpose of malversation, national officer shall be considered as an accountable

officer if he has custody or control of public property by reason of the duties of his office
(Government Auditing Code of the Philippines). The Local Government Code expanded the concept
of accountable local officer. Local officer shall be considered as an accountable officer if he has
possession or custody of local government funds because of the nature of their functions such a
treasure or has participated in the use or application of thereof. All public officials whose signatures
were necessary for disbursement of funds are accountable officers.

The signatures of Vice-Governor and Provincial Accountant are needed to disburse funds of local
government. Hence, they are accountable officers. (Zoleta vs. Sandiganbayan, G.R. No. 185224, July
29, 2015) The management and audit analyst of the province certified that the supporting
documents were complete, the provincial treasurer certified the availability of funds and approved
the disbursement, and the Governor signed them before a check could be approved for
disbursement. Hence, they are accountable officers. (Escobar vs. People, G.R. No. 205576,
November 20, 2017, Justice Leonen) A mayor, whose signature is needed to disburse municipal
funds, is an accountable officer. (Manuel vs. Hon. Sandiganbayan, G.R. No. 158413, February 08,
2012)

Under Government Auditing Code of the Philippines, a management and audit analyst of the
province, whose duty is to certify that the supporting documents for the disbursement of funds are
complete is not an accountable officer because he has no custody or control of the provincial fund.
However, under the Local Government Code, he is an accountable officer because he will participate
in the use or application of this fund.

In Escobar vs. People, G.R. No. 205576, November 20, 2017 ,Justice Leonen), the governor,
treasurer, management and audit analyst, administrator, board member and executive assistant are
charged with malversation through falsification of documents (disbursement voucher and supporting
documents e.g. request for financial assistance). The governor, treasurer and management and audit
analyst are accountable officers since they participated in the disbursement of public funds. On the
other hand, administrator, board member and executive assistant are not accountable officers. If
there is conspiracy between the accountable officers and non-accountable officers, they are liable for
complex crime of malversation through falsification of documents. However, in this case there is no
conspiracy. The accountable officers (governor, treasurer, management and audit analyst) were not
aware that the beneficiary of financial assistance is fictitious. Hence, they are liable for malversation
through negligence since they participated in disbursement of funds without verifying the
authenticity of the documents despite the fact that the payee in the voucher is different from the
one who requested financial assistance. They are not liable for falsification of documents since they
are not aware that the supporting documents are falsified. The administrator, board member and
executive assistant are not liable for malversation since they are not accountable officers. However,
they are liable for complex crime of estafa through falsification of documents. They falsified
documents (request letter and project proposal) in support of the disbursement of funds as a
necessary means to defraud the Province. Although they are charged with malversation through
falsification of documents, they can be convicted of estafa through falsification of document because
the latter is necessarily included in the former.

Malversation is committed either intentionally or by negligence. The dolo or the culpa is only a
modality in the perpetration of the felony. Even if the mode charged differs from the mode proved,
the same offense of malversation is still committed. (Mesina vs. People, G.R. No. 162489, June 17,
2015) A possible exception would be when the mode of commission alleged in the particulars of the
indictment is so far removed from the ultimate categorization of the crime that it may be said that
due process was denied by deluding the accused into an erroneous comprehension of the charge
against him or her. Here, the said exception is not present. Accused was not prejudiced nor does it
appear that she failed to comprehend the crime charged against her. Thus, accused was not deprived
of due process. (Corpuz vs. People, G.R. No. 241383, June 08, 2020)

TUMULTUOUS AFFRAY - Physical injuries inflicted in a tumultuous affray is committed by person or

persons identified as responsible for using violence upon a participant of a tumultuous affray, who
suffered serious or less serious physical injuries committed by an unidentified person in the course
thereof. (Article 252 of RPC)

The provision on physical injuries inflicted in tumultuous affray is an evidentiary measure designed to
remedy a situation where the participant thereof, who inflicted serious or less serious physical
injuries upon the victim, was not identified because of the confusion. Since there is uncertainty on
whether the one, who employed violence against the victim, committed serious or less serious
physical injuries or merely slight physical injuries, the former will be punished for physical injuries
inflicted in a tumultuous affray with a penalty lesser than that for serious or less serious physical
injuries.

Failure to identify the offender who inflicted less serious physical injury upon victim is an important
element of physical injuries inflicted in a tumultuous affray. If the accused is positively identified as a
person, who inflict the injuries on the victim, the former is not entitled to the lesser penalty
prescribed for physical injuries inflicted in a tumultuous affray. In such a case, there is no confusion,
which is the essence of tumultuous affray. Hence, accused is liable for the graver crime of less serious
physical injuries (Lacson vs. People, G.R. No. 243805, September 16, 2020)

ESTAFA – The return by the accused of money belonging to the private complainant will not reverse
a consummated act of Estafa. Quite the contrary, such action may even uphold a conviction. Section
27, Rule 130 of the Rules of Court states that in criminal cases, except those involving quasi-offenses
or criminal negligence or those allowed by law to be compromised, an offer of compromise by the
accused may be received in evidence as an implied admission of guilt. In this case, Arriola's initial
attempts to reimburse Del Rosario through checks, coupled with the actual return of the latter's
money after the RTC issued its judgment of conviction, may all be considered as unequivocal gestures
to compromise and which can be measured against Arriola as his implied admission of guilt. (Arriola
vs. People, G.R. No. 199975, February 24, 2020)

OTHER DECEIT - For one to be liable for “other deceits” under Article 318, it is required that the
prosecution must prove the following essential elements: (a) false pretense, fraudulent act or
pretense other than those enumerated in Articles 315, 316, and 317; (b) such false pretense,
fraudulent act or pretense must be made or executed prior to or simultaneously with the
commission of the fraud; and (c) as a result, the offended party suffered damage or prejudice. It is
essential that such false statement or fraudulent representation constitutes the very cause or the
only motive for the private complainant to part with her property. (Guinhawa v. People, G.R. No.
162822, August 25, 2005)

Article 318 includes any kind of conceivable deceit other than those enumerated in Articles 315 to
317 of the Revised Penal Code. It is intended as the catchall provision for that purpose with its broad
scope and intendment. (Guinhawa v. People, ibid.) In estafa under Article 315, the false
representation is committed by using fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of
other similar deceits. Following the principle of ejusdem generis, other deceit as a means to commit
estafa must be similar to pretending to possess power, imaginary transaction etc. If the deceit is not
similar to pretending to possess power or imaginary transaction, the crime committed is other deceit
under Article 318.

In Guinhawa v. People, supra, fraudulent representation of the seller that the van to be sold is brand
new constitutes other deceit under Article 318. On the other hand, in People v. Rubaton, C.A., 65
O.G. 5048, issue of May 19, 1969, false representation that accused has a palay by reason of which
the victim parted his money in consideration of the palay constitutes estafa under Article

315. Unlike in the Guinhawa case, the transaction in Rubaton case is imaginary.

In Osorio vs. People, G.R. No. 207711, July 02, 2018 (Justice Leonen), Accused as an agent of Philam
Life was authorized to solicit money for investment purposes. However, he misrepresented to private
complainant that the latter's money would be invested in Philam Life Fund Management and that its
proceeds may be utilized to pay for private complainant's insurance premiums. Private complainant
parted with her funds because of the representation that her investment's earnings would be
conveniently channeled to the payment of her insurance premiums. The false representations
committed by accused is not within the contemplation of the words “other similar deceits" in Article
315 of RPC on estafa estafa. Same as the case of Guinhawa, the misrepresentation is not similar to
imaginary transaction. However, he is criminally liable for the crime of other deceit under Article 318
of RPC. Article 318 is broad in scope intended to cover all other kinds of deceit not falling under
Articles 315, 316, and 317.

Hypothetically, if the accused is not an agent of Philam Life, but he falsely represented himself as
agent, he is liable for estafa since the investment transaction is imaginary.

THEFT – A tenant is entitled to the products of the land he or she cultivates. The landowner's share
in the produce depends on the agreement between the parties. Hence, the harvesting done by the
tenant is with the landowner's consent. The existence of the DARAB Decision adjudicating the issue
of tenancy between accused and complainant negates the existence of the element that the taking
was done without the owner's consent. The DARAB Decision implies that accused had legitimate
authority to harvest the abaca. The prosecution, therefore, failed to establish all the elements of
theft. (Ligtas vs. People, G.R. No. 200751, August 17, 2015, Justice Leonen)

Value of the stolen property - The value of jewelry is not a matter of public knowledge nor is it
capable of unquestionable demonstration and in the absence of receipts or any other competent
evidence besides the self-serving valuation (P1 million) made by the complainant, the courts may
either apply the lowest penalty under Article 309 or fix the value of the property taken based on the
attendant circumstances of the case. In this case, the court imposed the lowest penalty (People vs.
Mejares, G.R. No. 225735, January 10, 2018, Justice Leonen).

Domestic servant - The rationale for the imposition of a higher penalty against a domestic servant is
the fact that in the commission of the crime, the helper will essentially gravely abuse the trust and
confidence reposed upon her by her employer. After accepting and allowing the helper to be a
member of the household, thus entrusting upon such person the protection and safekeeping of the
employer's loved ones and properties, a subsequent betrayal of that trust is so repulsive as to
warrant the necessity of imposing a higher penalty to deter the commission of such wrongful acts.
(People vs. Mejares, G.R. No. 225735, January 10, 2018, Justice Leonen)

THEFT AND ROBBERY - Snatching of the shoulder bag without violence or intimidation constitutes
the crime of theft, not robbery. For the requisite of violence to obtain in cases of simple robbery, the
victim must have sustained less serious physical injuries or slight physical injuries in the occasion of
the robbery. The fact that the necklace was "grabbed" did not automatically mean that force
attended the taking. (Del Rosario vs. People, G.R. No. 235739, July 22, 2019)

THEFT AND ESTAFA THROUGH MISAPPROPRIATION – Misappropriation of property may

constitute theft or estafa depending upon the character of the possession.

Physical possession - If the accused received the property with the consent of the owner but he
merely acquired physical possession in doing so, misappropriation shall be considered as taking
without consent; hence, the crime committed is theft (U.S. v. De Vera, G.R. No. L-16961, September
19, 1921) or qualified theft (People v. Tanchanco, G.R. No. 177761 April 18, 2012).

A franchise holder must personally operate the motor vehicle. That is the reason why government
regulation prohibits operator of motor vehicle from leasing it. In the eye of the law the driver of taxi
or passenger jeepney under boundary arrangement was only an employee of the owner rather than
a lessee. For being an employee, his possession of the jeepney is physical (People v. Isaac G.R. No. L-
7561, April 30, 1955), and thus, misappropriation thereof is carnapping (People vs. Bustinera, G. R.
No. 148233, June 8, 2004).

Legal possession - If the accused received the property with the consent of the owner and he
acquired legal possession in doing so by virtue of trust, commission, administration or obligation
involving the duty to make delivery or return such as lease, deposit, commodatum, or quasi-contract,
misappropriation shall be considered as estafa through conversion or misappropriation (Chua-Burce
vs. CA, G.R. No. 109595, April 27, 2000; D’Aigle vs. People, G.R. No. 174181, June 27, 2012).

Employee - As a rule, the possession of the employee such as bank teller, collector or cash custodian
is only physical. Hence, misappropriation of property is qualified theft. Abuse of confidence is present
since the property is accessible to the employee (Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000;
People vs. Tanchanco, G.R. No. 177761 April 18, 2012; People vs. Santos, G.R. No. 237982, October
14, 2020). However, if the employee is an officer of the company with discretion on how to use
property or fund of the company to further its interest, his possession is juridical; hence,
misappropriation thereof is estafa. Thus, the following officers are liable for estafa for
misappropriating company property: a. A bank president who held the money in trust or
administration for the bank in his fiduciary capacity with discretion on how to administer such fund
(People vs. Go, G.R. No. 191015, August 6, 2014); b. A corporate treasurer who received the money
for safe-keeping and administration (U.S. vs. Sevilla, G.R. No. 18056, March 16, 1922; c. A corporate
officer with discretion option on how to use bending machine without the participation of the
corporation (D’Aigle vs. People, G.R. No. 174181, June 27, 2012). However, in Remo vs. Devanadera,
G.R. No. 192925, December 9, 2016, the Supreme Court ruled that the directors of a corporation
have no juridical possession over the corporate funds.

Partner - Misappropriation by the industrial partner of the share of the capitalist partner (People vs.
Clemente, CA, 65 OG 6892) or the partnership fund to be used in buying and selling mango (People
vs. Dela Cruz, G.R. No. 21732, September 3, 1924) is estafa. Theft is not committed (US vs. Reyes, G.R.
No. 2867, September 11, 1906) because possession of the industrial partner over the same is juridical
(People vs. Tan Tay Cuan, CA, 57 OG 6964).

In US vs. Clarin, G.R. No. 5840, September 17, 1910, four individuals entered into a contract of
partnership for the business of buying and selling mangoes. When one of the partners demanded
from the other three the return of his monetary contribution, the Supreme Court ruled that "the
action that lies with the capitalist partner for the recovery of his money is not a criminal action for
estafa, but a civil one arising from the partnership contract for a liquidation of the partnership and a
levy on its assets, if there should be any. Simply put, if a partner demands his money back, the duty
to return the contribution does not devolve on the other partners; the duty now belongs to the
partnership itself as a separate and distinct personality.

In 1997, a case with circumstances similar to the Clarin case was decided differently. In Liwanag v.
Court of Appeals, G.R. No. 114398 October 24, 1997, three individuals entered into a contract of
partnership for the business of buying and selling cigarettes. They agreed that one would contribute
money to buy the cigarettes while the other two would act as agents in selling. When the capitalist
partner demanded from the industrial partners her monetary contribution because they stopped
informing her of business updates, this time, this Court held the industrial partners liable for estafa.

In Orbe vs. Miaral, G.R. No. 217777, August 16, 2017, the Supreme Court ruled that said the OCP
erred gravely when it dismissed the case based on the Clarin case, which has already been
superseded by Liwanag case. Liwanag applies to the partnership agreement executed between
petitioner and respondent. Petitioner's initial contributions were all for specific purposes: for the
buying and selling of garments and for the salaries of the factory workers, respectively. When
respondent failed to account for these amounts or to return these amounts to petitioner upon
demand, there is probable cause to hold that respondent misappropriated the amounts and had not
used them for their intended purposes. The Information for estafa should thus proceed. Even
assuming that a contract of partnership was indeed entered into by and between the parties, when
money or property had been received by a partner for a specific purpose and he later
misappropriated it, such partner is guilty of estafa.

Ownership - If the accused received the property with the consent of the owner and he acquired
ownership in doing so by virtue of a contract such as sale, mutuum or loan, failure to perform
obligation under such contract is neither theft nor estafa since the same is purely civil in character
(People vs. Montemayor, G.R. No. L-17449, August 30, 1962).

In Ibanez vs. People, G.R. No. 198932, October 09, 2019, with the transaction entered into by the
parties being a sale, the accused as the vendee did not receive the property subject of the sale in
trust or under an obligation to return. The parties' agreement to transfer the title upon payment of
the purchase price rather placed the accused in the position of an owner and made him liable to the
transferor as a debtor for the agreed price; he was not merely an agent who must account for the
proceeds of a resale. The failure on the part of the accused to pay the consideration in full only
resulted to the complainants being unpaid vendors. The former did not thereby incur criminal liability
for estafa, for the right of the complainants as unpaid vendors was only to demand the fulfilment or
the cancellation of the obligation.

Seller failed to return advance payment to the buyer after having incurred delay in the performance
of obligation under a contract of sale. The seller cannot be held liable for estafa through
misappropriation. In estafa through misappropriation, the offender must have the obligation to
return the very property that he received. The seller acquired ownership over the money received as
advance payment. In case of failure to perform obligation under a sale contact, the seller has no
obligation to return to the buyer the very moneys with the same serial numbers received as advance
payment. In returning the advance payment, the seller can use moneys with different serial numbers.
Hence, his obligation to return the advance payment is merely civil in character. (People vs. Salazar,
G.R. No. 149472, August 18, 2004) The Salazar case involved estafa through misappropriation. Hence,
the accused cannot use the Salazar principle in a case involving estafa through false pretense. In this
case, accused misrepresented that he is authorized to sell a land owned by Candelaria (a third
person) to the complainant, where in fact he is not authorized. He was convicted of estafa through
false pretense. (Arriola vs. People, G.R. No. 199975, February 24, 2020)

Variance rule - In Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000, Reside vs. People, G.R. No.
210318, July 28, 2020, and Linunao vs. People, G.R. No. 194359, September 02, 2020, accused are
charged in the information with estafa through misappropriation. However, the crime proven by
evidence is qualified theft since the accused in these three cases are employee, whose possession
over the money of his employer is merely physical. Thus, the accused cannot be held liable for estafa
through misappropriation because juridical possession, which is an indispensable element thereof, is
lacking.

The facts in these three cases are the same. In these cases, the Supreme Court acquitted the accused
of estafa. But their treatments on convicting the accused for theft are different. In Chua-Burce case,
the accused was not held liable for qualified theft. In sum, the Court did not apply the variance rule.
However, in Reside case, the Supreme Court applied the variance rule and convicted the accused of
qualified theft. It was held it is proper to hold accused guilty of qualified theft because the latter
crime was necessarily included in the crime charged in the information. Qualifying circumstance of
abuse of confidence, which is alleged in the information, was appreciated. In Linunao case, the
accused was convicted of simple theft since the Information filed against her sufficiently alleged all
the elements of theft. Qualifying circumstance of abuse of confidence was not appreciated since the
same was not alleged in the information.

In my submission, the Chua-Burce case is the correct principle. In these three cases, their respective
informations do not allege “taking without consent of the owner,” which is an indispensable element
of theft. Hence, it is improper to convict the accused of theft, simple or qualified. Moreover, People
vs. Balerta, G.R. No. 205144, November 26, 2014, and People vs. Benabaye, G.R. No. 203466,
February 25, 2015, the Supreme Court re-affirmed the Chua-Burce principle. Since in Reside case and
Linunao case, the Supreme Court is not sitting En Banc, it cannot abandon the Chua-Burce case,
Balerta case and Benabaye case.

However, for purpose of the 2021 Bar Examination, since Reside case and Linunao case are recent
Supreme Court decisions, it is advisable to follow these cases.

CATTLE RUSTLING - Not all of the elements of cattle-rustling were proven by the prosecution. The
carabao transported by accused was not sufficiently proven to be the same carabao owned by
complainants. Complainant’s description of the carabao is too generic. He did not mention any
distinguishing mark on the carabao that accused allegedly stole. In other cases involving cattle-
rustling, the identity of the stolen cattle was proven with certainty because of distinguishing marks
on the cattle. (Lopez vs. People, G.R. No. 212186, June 29, 2016, Justice Leonen)

SYNDICATED ESTAFA - The elements of syndicated estafa under P.D. No. 1689 are: 1. Estafa or other
forms of swindling under Articles 315 to 318 of RPCis committed; 2. It is committed by a syndicate of
five or more persons; and 3. Defraudation results in the misappropriation of moneys contributed by
stockholders, or members of rural banks, cooperative, “samahang nayon,” or farmers’ associations,
or of funds solicited by corporations/associations from the general public. (People v. Tibayan, G.R.
Nos. 209655-60, January 14, 2015)

Syndicate - A syndicate is defined as consisting of five or more persons formed with the intention of
carrying out the unlawful or illegal act, transaction, enterprise or scheme. In illegal recruitment,
trafficking in person and child pornography, a syndicate is only composed of at least three offenders.
In syndicated/organized crime group, a syndicate is composed of at least two offenders.

In order for any group to be considered a syndicate under P.D. No. 1689, the perpetrators of an
estafa must not only be comprised of at least five individuals but must have also used the association
that they formed or managed to defraud its own stockholders, members or depositors. (Home
Development Mutual Fund vs. Sagun, G.R. No. 205698, July 31, 2018)

The swindling syndicate used the association that they manage to defraud the general public of
funds contributed to the association. Indeed, PD No. 1689 speaks of a syndicate formed with the
intention of carrying out the unlawful scheme for the misappropriation of the money contributed by
the members of the association. In other words, only those who formed or manage associations that
receive contributions from the general public who misappropriated the contributions can commit
syndicated estafa. (Home Development Mutual Fund vs. Sagun, supra)

There are three requisites to consider a group of swindlers as a syndicate under PD No. 1689: 1.
They must be at least five in number; 2. They must have formed or managed a rural bank,
cooperative, "samahang nayon," farmer's association or any other corporation or association that
solicits funds from the general public; 3. They formed or managed such association with the intention
of carrying out an unlawful or illegal act, transaction, enterprise or scheme i.e., they used the very
association that they formed or managed as the means to defraud its own stockholders, members
and depositors. (Home Development Mutual Fund vs. Sagun, supra)

In Home Development Mutual Fund vs. Sagun, supra, there are only four officers of Globe Asiatique
charged for syndicated estafa. The fifth respondent, which will complete the requirement of at least
five swindlers in syndicated estafa, is Atty. Alvarez. However, Atty. Alvarez was officer of HDMF
whose only connection with Globe Asiatique was by reason of his having rendered notarial services
for the latter. Since Atty. Alvarez was not related to Globe Asiatique either by employment or by
ownership, he could not be considered as part of the syndicate supposedly formed or managed to
defraud its stockholders, members, depositors or the public. Hence, respondents should not have
been charged with syndicated estafa. Justice Leonen dissented to the view of the majority.

Funds Solicited from the General Public - The fact that the entity involved was not a rural bank,
cooperative, samahang nayon or farmers’ association does not take the case out of the coverage of
P.D. No. 1689. The law applies to other corporations or associations operating on funds solicited
from the general public. (People v. Balasa, G.R. No. 106357, September 3, 1998) Thus, the entity can
be a commercial bank. (Galvez v. Hon. CA, G.R. No. 187919, February 20, 2013)

If the money misappropriated is not solicited from the general public, the crime committed is simple
estafa under the Revised Penal Code. (Hao v. People, supra)

There are three parties involved in syndicated estafa, to wit: (1) the corporation or association; (2)
general public such as stockholders and members of the association; they are the victims and (3) the
owners and members of the association, who used such association to defraud the general public;
they are the offenders. The association or corporation can neither be a victim nor the offender in
syndicated estafa. The association is just an instrument used by the offenders to defraud the victim.
A bank cannot charge its employees with syndicated estafa for misappropriating its money. (Galvez v.
Hon. CA, supra) The crime committed by a bank employee or officer is estafa or theft depending
upon the nature of their position.

In Home Development Mutual Fund vs. Sagun, G.R. No. 205698, July 31, 2018, based on evidence,
GLOBE ASIATIQUE (GA) allegedly recruited "special buyers," who are not members of Pag-ibig. For a
fee, these “special buyers” would apply membership in Pag-ibig, and then, they would obtain housing
loans from Pag-Ibig but they will not occupy the housing units involved. Then GA will sell the units to
real buyers, who would assume the balance on the loan of the "special buyer." Because of this
complex scheme involving fraudulent buyers, a huge amount of money was transferred from the
coffers of the Pag-ibig fund by HDMF, and released to the GA. Officers of GA including Delfin Lee
were charged of syndicated estafa. In this crime, it must be established that GA solicited funds from
the general public and at least five swindlers used GA to defraud its members or stockholders.
However, in this case, GA did not solicit funds from the general public. The HDMF, the complainant,
was not itself a stockholder or member of GA. It was the HDMF itself, not GA, that had solicited (Pag-
ibig) funds from its members. The funds supposedly misappropriated did not belong to GA's
stockholders or members, or to the general public, but to the HDMF. Thus, respondents did commit
syndicated estafa. However, they should be charged with simple estafa.

Swindling may fall within the ambit of P.D. No. 1689 if it is committed through an association. On
the other hand, estafa is committed regardless of the number of the accused when: (a) the entity
soliciting funds from the general public is the victim and not the means through which the estafa is
committed, or (b) the offenders are not owners or employees who used the association to perpetrate
the crime. (Home Development Mutual Fund vs. Sagun, supra)
MALICIOUS MISCHIEF - Assuming that accused owned the property in controversy, he and his co-
accused were not justified in summarily destroying the improvements built thereon by complainant.
They unlawfully took the law into their own hands when they surreptitiously entered complainant's
enclosed lot and destroyed its fence and foundation. Evidently, accuseds' actions were made out of
hatred, revenge or evil motive. They were convicted of malicious mischief (Grana vs. People, G.R. No.
202111, November 25, 2019)

ARSON – Destructive arson is characterized as heinous crime; while simple arson under PD No. 1613
is a crime manifesting a lesser degree of perversity. Simple arson contemplates the malicious
burning of property not included in Article 320 of the RPC (People vs. Macabando, GR No. 188708,
July 31, 2013). Burning of inhabited house or dwelling or personal property is simple arson under
Section 3 of P.D. No. 1613 because it is not included in Article 320 of RPC.

Intent to kill - If the main objective is to kill the victim in a building, and fire is resorted to as the
means to accomplish such goal, the crime committed is murder only. Murder qualified by means of
fire absorbs arson since the latter is an inherent means to commit the former (People vs. Cedenio,
G.R. No. 93485, June 27, 1994). Single act of burning the building to kill two persons constitutes
compound crime of double murders (People vs. Gaffud, G.R. No. 168050, September 19, 2008;
People vs. Mercado, G.R. No. 218702, October 17, 2018)

One has deliberately set fire to a building is presumed to have intended to burn the building (People
vs. De Leon, G. R. No. 180762, March 4, 2009). Since intent to burn is presumed, intent to kill must be
established beyond reasonable doubt. Failure to show intent to kill, the accused shall be convicted of
arson with qualifying circumstance of resulting death and not murder (People vs. Baluntong, G.R. No.
182061, March 15, 2010).

Intent to burn - If the main objective is to burn the building, but death results by reason or on the
occasion of arson, the crime is arson with qualifying circumstance of resulting death (People vs.
Enriquez, G.R. No. 248372, August 27, 2020). The resulting homicide is absorbed (People vs.
Villacorta, G.R. No. 172468, October 15, 2008) since it will be considered as a modificatory
circumstance.

In People v. Villacorta, G.R. No. 172468, October 15, 2008 and People v. Jugueta, G.R. No. 202124,
April 5, 2016, the Supreme Court described arson with the qualifying circumstance of resulting death
as special complex crime of arson with homicide. However, People vs. Dolendo, G.R. No. 223098,
June 3, 2019, the Supreme Court said that the Court of Appeals correctly modified appellant's
conviction from arson with homicide to simple arson conformably with prevailing jurisprudence.

For purpose of the bar examination, if the accused burned burning the building without intent to kill,
and as a consequence, death results, the crime should be designated as simple arson under PD No.
1613 (Dolendo case) or destructive arson under the Revised Penal Code with the qualifying
circumstance of resulting death (Abayon case)

Intent to conceal - If the objective is to kill, and in fact the offender has already done so, and arson is
resorted to as a means to cover up the killing, the offender may be convicted of two separate crimes
of either homicide or murder, and arson (People vs. Cedenio, G.R. No. 93485, June 27, 1994).

BIGAMY – Declaration of nullity of the first marriage is not a defense in bigamy. After the
consummation of bigamy, subsequent declaration of nullity of the first marriage is not a defense
since it is not a mode of extinguishing criminal liability listed in Article 89 (Jarillo vs. People, GR No.
164435, September 29, 2009). To avoid criminal liability, the declaration of nullity of the first
marriage must be made previous to the consummation of bigamy, which is required by Article 40 of
the Family Code that provides: The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.
A declaration of the absolute nullity of the first marriage is now explicitly required either as a cause
of action or a ground for defense in bigamy (People vs. Teves, G.R. No. 188775, August 24, 2011).

In Vitangcol vs. People, G.R. No. 207406, January 13, 2016 (Justice Leonen), As early as 1968, this
court held in Landicho v. Relova that parties to a marriage should not be permitted to judge for
themselves its nullity, only competent courts having such authority; prior to such declaration of
nullity, the validity of the first marriage is beyond question; a party who contracts a second marriage
then assumes the risk of being prosecuted for bigamy. The commission that drafted the Family Code
considered the Landicho ruling in wording Article 40 of the Family Code: which provides that the
absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage void. Should the requirement of judicial
declaration of nullity be removed as an element of the crime of bigamy, Article 349 of Revised Penal
Code becomes useless. All that an adventurous bigamist has to do is to contract a subsequent
marriage and escape a bigamy charge by simply claiming that the first marriage is void and that the
subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first.

Declaration of nullity of the second marriage is not a defense in bigamy. After the consummation of
bigamy, subsequent declaration of nullity of the second marriage is not a defense since it is not a
mode of extinguishing criminal liability listed in Article 89 (Jarillo vs. People, GR No. 164435,
September 29, 2009). To make declaration of nullity of second marriage after the consummation of
the crime of bigamy as a defense would render the State’s penal laws on bigamy completely
nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some
manner, and to thus escape liability for bigamy. (Tenebro vs. The Honorable Court of Appeals, G.R.
No. 150758, February 18, 2004) Note: Article 40 of the Family Code is not applicable if what is
involved is declaration of nullity of the second marriage.

In Sarto vs. People, G.R. No. 206284, February 28, 2018, in a bigamy case, accused alleged that
complainant, his wife, acquired Canadian citizenship, obtained a divorce, and thereafter, remarried.
By raising divorce, it is incumbent upon the accused to show that it was validly obtained in
accordance with complainant's national law (e.g. Canadian law) prior to the celebration of the second
marriage. In this case, accused presented a certificate of divorce allegedly issued by the registrar of
the Supreme Court of British Columbia. The defense was rejected. First, the divorce decree required
to prove the fact of divorce is the judgment itself as rendered by the foreign court and not a mere
certification. Second, assuming the certificate of divorce may be considered as the divorce decree, it
was not accompanied by a certification issued by the proper Philippine diplomatic or consular officer
stationed in Canada, as required under Section 24 of Rule 132. Lastly, no copy of the alleged
Canadian law was presented by the defense. Thus, it could not be reasonably determined whether
the subject divorce decree was in accord with complainant's national law. Accused was convicted of
bigamy.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him/her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law. (par. 2 of Article 26 of the Family Code)
This rule includes cases involving parties who, at the time of the celebration of the marriage were
Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a
divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a
foreigner at the time of the solemnization of the marriage. (Republic v. Orbecido III, G.R. No. 154380,
October 5, 2005) However, Orbecido case will not apply if there is no competent evidence
concerning naturalization of the alien spouse and the divorce decree, which capacitated the alien
spouse to remarry. (Sarto vs. People, supra)

PULIDO v PEOPLE, GR No. 220149, July 27, 2021, Unanimous En Banc Decision per J. Hernando

Void Ab initio prior or subsequent marriage as a defense against bigamy

In laying to rest the conflicting decisions on the matter, the Supreme Court has held that the parties
are not required to obtain a judicial declaration of absolute nullity of a void ab initio of a prior or
subsequent marriage in order to raise it as a defense in a Bigamy case.
Art. 40 of the Family did not in any way amend Art. 349 of the RPC on Bigamy. Thus, the accused in
the Bigamy case can collaterally attack the validity of a prior void marriage in the same criminal
proceedings for Bigamy.
The foregoing will not apply if the 1st or 2nd marriage is merely voidable, since a voidable marriage is
valid until annulled.
.
Family Code Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage void.

ILLEGAL MARRIAGE – A priest, who performed a marriage ceremony despite knowledge that the
couple had no marriage license, is liable for illegal marriage. The law sets the minimum requirements
constituting a marriage ceremony: first, there should be the personal appearance of the contracting
parties before a solemnizing officer; and second, their declaration in the presence of not less than
two witnesses that they take each other as husband and wife (Ronulo vs. People, G.R. No. 182438,
July 02, 2014).

LIBEL - In Manila Bulletin Publishing Corporation vs. Domingo, G.R. No. 170341, July 5, 2017, the
accused published an article where he stated that these national employees should be
commended for bringing into the open this garbage that has piled up in their own backyard. To Joe
Con's successor, the chopping board is ready. All you need is a Muslim kris! Palakulin mo, Pare ko!.
This is not libelous. On the first statement, accused is merely commending the DTI employees who
brought into the open their complaints against the private complainant in this case, a DTI officer. This
is a fair remark. The last three sentences merely meant that heads should roll at the DTI office, which
does not ascribe something deprecating against complainant. Moreover, the statement does not
refer to an ascertained or ascertainable person.

In Belen vs. People, G.R. No. 211120, February 13, 2017, accused filed a motion for reconsideration
of resolution dismissing a complaint for estafa with irrelevant and defamatory statement against the
investigating prosecutor was filed with the OCP of San Pablo City and copy furnished to the
respondent in the estafa complaint, and the Office of the Secretary of Justice. Despite the fact that
the motion was contained in sealed envelopes, it is not unreasonable to expect that persons other
than the one defamed would be able to read the defamatory statements in it. Hence, the element of
publicity in libel is present.

In Belen vs. People, G.R. No. 211120, February 13, 2017, accused filed a motion for reconsideration
of resolution dismissing a complaint for estafa. The accused alleged in the said motion the public
prosecutor who dismissed the case is corrupt, stupid, imbecile, mentally dishonest and bereft of
intellectual ability. This is not covered by the absolute privilege communication rule since the
defamatory allegations in the motion are not relevant to the issue of whether or not the motion for
reconsideration should be granted because there is probable cause to charge the respondent in the
preliminary investigation for estafa. In his dissenting opinion, Justice Leonen expressed his view that
libel ought to be decriminalized; it is inconsistent with the constitutionally protected right to freedom
of speech; there is no state interest served in criminalizing libel; civil actions for defamation are
sufficient to address grievances without threatening the public's fundamental right to free speech.

Before Article 360 of RPC was amended, the rule was that a criminal action for libel may be instituted
in any jurisdiction where the libelous article was published or circulated, irrespective of where it was
written or printed. Experience had shown that under that old rule the offended party could harass
the accused in a libel case by laying the venue of the criminal action in a remote or distant place. To
forestall such harassment, RA No. 4363, which amended RPC, lays down specific rules as to the venue
of the criminal action so as to prevent harassment arising from out-of-town libel suits. (People vs.
Macasaet, G.R. No. 196094, March 5, 2018) As a general rule, venue for libel is either province or city
where the libelous article is printed and first published or where any of the offended parties actually
resided at the time of the commission of the offense. However, if the offended party is a public
officer, there is a third optional venue, and that is, province, city or Manila where he held office at
the time of the commission of the offense. In all cases, the criminal action shall be filed in the
Regional Trial Court.

Information alleged that publisher and writer of Malaya with address at Port Area, Manila City
defamed private complainant by writing and publishing a defamatory article in the Malaya. The Port
Area, Manila is the editorial and business offices of Malaya. This is a compliance with the rule
requiring allegation in the information of the place where the alleged defamatory article was printed
and first published. The Information need not parrot the provisions of Article 360 of the RPC and
expressly use the phrase "printed and first published." If there is no dispute that the place of
publication indicated in the Information is the place where the alleged defamatory article was
"printed and first published," then the law is substantially complied with. After all, the filing of the
Information before an RTC of Manila would forestall any inclination to harass the accused. (People
vs. Macasaet, G.R. No. 196094, March 5, 2018)

In De Leon v. People, G.R. No. 212623, January 11, 2016, complainant, a policeman, pointed his gun
at his jogging buddy, the accused. During the hearing on administrative case, the accused stated
“walang hiya, mangongotong na pulis, yabang mo.” The statement is defamatory since it imputes to
complainant the crime of robbery. However, since the statement was made a mere product of an
emotional outburst because of the gun-pointing incident, the crime is only classified as simple
slander. In his dissenting opinion, Justice Leonen said the accused's words could not be considered as
having been driven by the intent to ridicule or humiliate, but were a mere expression of his
disappointment over complainant’s actions as a police officer.

RECKLESS IMPRUDENCE – Two (2) prosecution witnesses testified that they heard a thud, felt the
jeepney tilt, and saw a man lying flat on the ground; thus, they concluded that the jeepney petitioner
was driving hit the man. Another prosecution witness testified to hearing a loud thud and then
hearing some passengers inside a jeepney shout that someone got hit. The same witness also
testified that he saw a man lying on the ground near the jeepney. No one testified as to the manner
by which petitioner was driving before he supposedly hit Jaquilmo, or of personally witnessing the
jeepney hit Jaquilmo. The prosecution was able to prove that Jaquilmo died on the bridge, but it
failed to prove beyond reasonable doubt that petitioner's imprudence in driving the jeepney was the
proximate cause of his death. (Valencia vs. People, G.R. No. 235573, November 09, 2020)

BP BLG. 22 – It is of no moment that the subject checks were issued as a guarantee and upon the
insistence of private complainant. What is significant is that the accused had deliberately issued the
checks in question to cover accounts and those same checks were dishonored upon presentment,
regardless of the purpose for such issuance. The legislative intent behind the enactment of B.P. 22, as
may be gathered from the statement of the bill's sponsor when then Cabinet Bill No. 9 was
introduced before the Batasan Pambansa, is to discourage the issuance of bouncing checks, to
prevent checks from becoming "useless scraps of paper" and to restore respectability to checks, all
without distinction as to the purpose of the issuance of the checks. Said legislative intent is made all
the more certain when it is considered that while the original text of the bill had contained a proviso
excluding from the law's coverage a check issued as a mere guarantee, the final version of the bill as
approved and enacted deleted the aforementioned qualifying proviso deliberately to make the
enforcement of the act more effective. It is, therefore, clear that the real intention of the framers of

B.P. 22 is to make the mere act of issuing a worthless check malum prohibitum and, thus, punishable
under such law. (Ongkingco vs. Sugiyama and People, G.R. No. 217787, September 18, 2019)

What sets apart the crime of estafa from the other offense of this nature (i.e., Batas Pambansa
Bilang 22) is the element of deceit. To constitute estafa, deceit must be the efficient cause of the
defraudation, such that the issuance of the check should be the means to obtain money or property
from the payer resulting to the latter's damage. In other words, the issuance of the check must have
been the inducement for the surrender by the party deceived of his money or property. (Abalos vs.
People, G.R. No. 221836, August 14, 2019)

There is no showing whatsoever that accused had knowledge of the insufficiency of funds of the
check he endorsed to private complainant. Admittedly, the checks received by private complainant
were checks issued and paid to accused by a certain Ham. Upon notice that the subject checks were
dishonored, accused immediately searched for Ham but the same proved to be futile considering
that the latter already left the country. The business relationship between private complainant and
accused is already 16-year, and the former had the practice of accepting the checks of clients of the
latter, even if he did not personally know them. Thus, there is no need for the accused to assure the
complainant that the subject checks would be sufficiently funded upon maturity before accepting the
same. Clearly, private complainant was not deceived to accept the subject checks but did so out of a
standard procedure which he and accused developed over the years. (Juaquico vs. People, G.R. No.
223998, March 05, 2018)

CHILD ABUSE – As a general rule, in a case where the victim is a minor, accused should not be
charged with a felony such as grave threat or robbery with rape in relation to RA No. 7610. If the
information charged the accused with a felony in relation to RA No. 7610, the court must delete the
correlation. (People vs. Bueza, G.R. No. 242513, November 18, 2020) Felonies and crimes under RA
No. 7610 are different and independent from each other. However, there are occasions where a
felony defined under Revised Penal Code is punishable by a penalty prescribed by RA No. 7610.
Section 5 and 10 of RA No. 7610 prescribe penalties for: (1) acts of lasciviousness committed against
a child exploited in prostitution or other sexual abuse, who is under 12 years of age, and (2)
homicide, other intentional mutilation and serious physical injuries committed against a child under
12 years of age. In such a case, correlation of RPC to RA No. 7610 in charging the accused is allowed.

In Cruz vs. People, G.R. No. 216642, September 08, 2020, the accused was convicted of homicide
committed against a 9-year-old child. He was sentenced to suffer a maximum penalty of 12 years and
1 day of reclusion temporal. With due respect to the Supreme Court, under Section 10 of RA No.
7610, the penalty for homicide where the victim is under 12-years of age is reclusion perpetua.

Section 10 (a) of RA No. 7610 is a "catch-all" provision which penalizes other acts of child abuse not
specifically addressed by other provisions of RA No. 7610 and the Revised Penal Code. (Talocod vs.
People, G.R. No. 250671, October 07, 2020) This provision punishes four distinct acts, to wit: (a) child
abuse, (b) child cruelty, (c) child exploitation and (d) being responsible for conditions prejudicial to
the child's development. Accused can be convicted under Section 10 (a) if he commits any of the four
acts therein. The prosecution need not prove that the acts of child abuse, child cruelty and child
exploitation have resulted in the prejudice of the child because an act prejudicial to the development
of the child is different from the former acts. (Patulot vs. People, G.R. No. 235071, January 7, 2019)

Physical injury – Child abuse (Section 10 of RA No. 7610) includes maltreatment, whether habitual or
not, of the child. Maltreatment includes psychological and physical abuse (Section 3) or infliction of
physical injury such as lacerations, fractured bones, burns, internal injuries, severe injury or serious
bodily harm suffered by a child (Rules and Regulations on the Reporting and Investigation of Child
Abuse Cases) such as banging the heads of the minor students by their teacher (De Ocampo v. The
Hon. Secretary of Justice, G.R. No. 147932, January 25, 2006)

Child abuse includes disciplinary acts by the father such as belting, pinching, and strangulating his 8-
year-old child, which caused her to limb (Lucido vs. People, G.R. No. 217764, August 7, 2017, Justice
Leonen) or by teacher such as slamming him on the floor which caused him to lost consciousness
(Rosaldes v. People, G.R. No. 173988, October 8, 2014). Intent to discipline student is not a defense
since Article 233 of the Family Code prohibits the infliction of corporal punishment by teacher.
(Rosaldes v. People, supra)

Degrading the dignity of the child – In Bongalon v. People, G.R. No. 169533, March 20, 2013,
accused saw the victim and his companions hurting his minor daughters. Angered, accused struck
minor-victim at the back with his hand and slapped his face. Since the accused committed the act at
the spur of the moment, they are perpetrated without intent to degrade the dignity of the victim.
Without such intent, the crime committed is not child abuse under R.A. No. 7610 but merely slight
physical injuries.

In Jabalde v. People, G.R. No. 195224, June 15, 2016, the accused was informed that her daughter's
head was punctured, and whom she thought was already dead. The accused slapped, struck, and
choked a minor as a result of the former's emotional rage. Absence of any intention to debase,
degrade or demean the dignity of the child victim, the accused's act was merely slight physical
injuries.

In Escolano vs. People, G.R. No. 226991, December 10, 2018, complainants, who are minors, threw
ketchup sachets against the daughter of the accused. But it was the accused, who was hit by the
sachets twice. Accused exclaimed, "Putang ina ninyo, gago kayo, wala kayong pinag-aralan, wala
kayong utak, subukan ninyong bumaba dito, pakakawalan ko ang aso ko, pakakagat ko kayo sa aso
ko."

Uttering “putang ina” to the minors in the heat of anger is not child abuse. The expression "putang
ina mo" is a common enough utterance in the dialect that is often employed, not really to slander but
rather to express anger or displeasure. In fact, more often, it is just an expletive that punctuates
one’s expression of profanity.

Threatening to release her dog to chase and bite the minors made in the heat of anger is not child
abuse. Accused merely intended that they stop their rude behavior. Absence of any intention to
degrade the dignity of minors, accused is only liable for other light threats.

The statement "putang ina mo" and making hacking gestures with a bolo, which are directed against
the mother of two children, are not constitutive of child abuse involving degrading the dignity of a
child. Since the threatening acts are not directed against the children, intent to degrade, debase or
demean their dignity is not established.

In Talocod vs. People, G.R. No. 250671, October 07, 2020, as his playmates were bothering passing
motorists by throwing sand and gravel on the road, AAA (11-years of age) berated and told them to
stop. Upset by AAA's reprimand, one of the children, reported the incident to her mother, the
accused. The accused immediately confronted AAA about his behavior, and while pointing a finger at
the latter, furiously shouted: "Huwag mong pansinin yan. At putang ina yan. Mga walang kwenta yan.
Mana-mana lang yan!" Accused is not criminally liable for child abuse. There is no showing that the
utterance was specifically intended to debase, degrade, or demean AAA's intrinsic worth and dignity
as a human being. To the contrary, it appears that accused's harsh utterances were brought about by
the spur of the moment, particularly, out of her anger and annoyance at AAA's reprimand of her
child.

In Bongalon case and Jabalde case, accused were convicted of slight physical injuries instead of child
abuse. In Escolano case, accused was convicted of other light threat instead of child abuse. In
Talocod case, accused was not held liable for child abuse or any other crime.

In People vs. Javarez, G.R. No. 248729, September 03, 2020, accused, a teacher, was not shown to
have intended to debase, degrade, or demean BBB's intrinsic worth and dignity as a human being.
For while hitting BBB with a broomstick is reprehensible, accused did so only to stop BBB and another
classmate from fighting over pop rice. Thus, he is liable for slight physical injuries, and not child
abuse. As for AAA, records show that in his effort to stop his two (2) other students from fighting
over food during his afternoon class, accused got to push AAA, one of the onlookers, as a result of
which, AAA fell on the floor with his face down. Surely, accused did not intend to maltreat nor
debase AAA's dignity as a human being. He was in all honesty simply trying to stop his students from
fighting. He cannot therefore be held liable of child abuse. Neither is he liable for slight physical
injuries. Accused as a teacher was merely trying to stop two of his students from fighting over food
during the class. AAA, a mere onlooker, was not involved in the fight. There was no evidence showing
accused ever intended to harm him in any way. It was possible though that as an onlooker, AAA
stood too close to the protagonists such that when accused stepped in to disengage the protagonists,
necessarily AAA was also pushed back, and as result, fell to the ground.

The Bongalon principle is inapplicable if the accused did not assault a child in the heat of anger or as
spontaneous reaction to his misbehavior. In Delos Santos vs. People, G.R. No. 227581, January 15,
2020, AAA, a minor and Daluro were on their way to her house when accused and his group
confronted them. Bob, brother of the accused, said "nag-iinit na ako," as he wanted to punch Daluro.
Bob attempted to hit Daluro with a rock, but AAA apologized to prevent a commotion. Accused
attempted to punch Daluro, but he dodged it and AAA was hit on the right cheek instead. Bob
punched AAA on the chest causing her to hit a wall. AAA asked companions of accused to call her
mother for help, but Bob interrupted and said "tama lang yan sa inyo pagtripan dahil dinemanda n'yo
kami." Accused hurled invectives at AAA, who was calling her mother on her way to her house with
Daluro. The Supreme Court finds the Bongalon case inapplicable and convicted the accused of child
abuse. The accosting and laying of hands are deliberately intended by accused and his group. The
word "pagtripan" signified an intention to debase or degrade that did not result from an unexpected
event. The acts of accused were offshoots of an intent to take revenge arising from the conflict
existing between his mother and AAA's mother. Accused did not lose his self-control and the acts
were not done at the spur of the moment.
In Torres vs. People, G.R. No. 206627, January 18, 2017 (Justice Leonen), in the middle of argument in
a barangay conciliation proceeding, AAA suddenly interjected that accused damaged his uncle’s
multicab and accused him of stealing his uncle’s fish nets. Accused told AAA not to pry in the affairs
of adults. He warned AAA that he would whip him if he did not stop. However, AAA refused to keep
silent and continued his accusation. Infuriated with AAA’s meddling, accused whipped AAA on the
neck using a wet t-shirt. Accused continued to hit AAA causing the latter to fall down from the stairs.
Whipping AAA on the neck with a wet t-shirt is an act that debases, degrades, and demeans the
intrinsic worth and dignity of a child. It is a form of cruelty. Being smacked several times in a public
place is a humiliating and traumatizing experience for all persons regardless of age. Accused, as an
adult, should have exercised restraint and self- control rather than retaliate against a 14-year-old
child.

The Bongalon principle is inapplicable if the accused inflicted serious physical injuries on a child. In
Patulot vs. People, G.R. No. 235071, January 7, 2019, throwing boiling cooking oil, which directed
against the mother of a baby and 3-year-old child, which consequently burned the faces and skin of
the minors, is not constitutive of child abuse involving degrading the dignity of a child. Since throwing
boiling oil is not directed against the children, intent to degrade, debase or demean their dignity is
not established. However, the accused is still liable of child abuse involving infliction of serious
physical injury.

Vasectomy – Doctor performed vasectomy on Larry, a mentally-retarded, whose mental age is 8

years, with consent of his guardian. Complaint for child abuse involving cruelty was filed against the
doctor and the consenting guardian since Larry for being a mentally retarded is not capable of giving
consent to vasectomy. Since the case was dismissed on technical ground, the Supreme Court in
Versoza vs. People, G.R. No. 184535, September 03, 2019 did not tackle the issue on whether
conducting vasectomy on a mentally retarded is a violation of RA No. 7610. However, individual
Justices presented their views on the matter.

According to Justice Leonen, the vasectomy on someone with cognitive disability, without his' or her
consent, is both an act of cruelty and an act prejudicial to the person's' development. Larry's legal
guardians, instead of acting only for his best interests, substituted his consent with their own under
the guise of "protection." There were other options for Larry who, in time, could have children of his
own. But this was taken away from him by the people who should have acted in Larry's best interest.
To deprive him of all the options his life had to offer is an act of cruelty. It was an act borne out of
selfishness, not love. It was not for them to conclude that Larry cannot become a parent or care for
someone other than himself.

However, Justice Coaguio opined that there is no shred of evidence offered to show that the
guardians and doctor were impelled by any ill-motive in facilitating the vasectomy procedure. No
specific intent to debase, degrade or demean intrinsic worth Larry as a human being had been
convincingly shown, thereby negating respondents' criminal liability under Section 10(a) of RA 7610.
Justice Peralta agreed with this view. According to Justice Jardeleza, RA 7610 does not criminalize
vasectomy. Justice Reyes stated that Larry's guardians have the right to decide what is best for the
child they took in and raised as their own; and such decision is clothed with the presumption of good
faith. The right of parents or guardians to provide consent for medical procedures on behalf of
intellectually disabled persons who are unable to provide such consent is part and parcel of their
parental authority over their children or wards.

Child abuse includes neglect. Neglect may be typified as: (1) physical; (2) educational; (3) emotional;
and (4) medical. Physical neglect refers to the failure to provide a child's basic needs, which consists
of food, clothing, and shelter. Educational neglect consists in the failure to ensure that the child
receives proper and adequate education. Emotional neglect is the failure to nurture by, among
others, ignoring or isolating the child. Medical neglect pertains to the failure to provide proper
healthcare to a child, as when, for instance, one ignores medical recommendations.

Neglect has also been expanded to recognize environmental neglect and supervisory neglect.
Environmental neglect pertains to a situation where a child is left in a hazardous or unclean location.
Supervisory neglect refers to a situation where a child is abandoned or left under the custody of an
inappropriate substitute. (Opinion of Justice Leonen; Versoza vs. People, G.R. No. 184535,
September 03, 2019)

SEXUAL ABUSE – Children in EPSOSA are those exploited in prostitution or subject to other sexual
abuse. (Concurring opinion of Justice Leonen in People vs. Tulugan, G.R. No. 227363, March 12, 2019)

Having sexual intercourse or lascivious conduct with a child constitutes child prostitution if
committed for money, profit, or any other consideration (People vs. Jalosjos, G.R. Nos. 132875-76,
November 16, 2001); or sexual abuse is committed under coercion or influence of any adult,
syndicate or group. In child prostitution, the victim is called child exploited in prostitution while in
sexual abuse the victim is called child subjected to other abuse (Section 5 of RA No 7610). Coercion is
either physical or psychological. Taking advantage of ascendency as a swimming instructor over
student is psychological coercion (People vs. Larin, G.R. No. 128777, October, 7 1998).

Child vs. child - Accused (15 years of age) inserting his finger into vagina of complainant (11 years
old). The crime committed is sexual assault under the RPC. Section 5 of RA No. 7610 prescribes the
penalty of reclusion temporal in its medium period if the lascivious conduct is committed against a
child subject to sexual abuse, who is under 12 years of age. RA No. 7610 is not applicable since the
accused is also a minor. RA 7610 was enacted in order to protect children from abuse, exploitation,
and discrimination by adults and not by persons who are also children themselves. Section 5 of RA
7610 expressly states that a child is deemed to be sexually abused when coerced or influenced by
an adult, syndicate, or group. (BBB vs. People, G.R. No. 249307, August 27, 2020)

Third person in sexual abuse – In coercion or influence as an element of sexual abuse is exerted
against child is clearly exerted NOT by the offender who is liable for sexual abuse or child prostitution
under Section 5 (b) of RA No. 7610, but by the adult (syndicate, or group), who is liable for
promoting, facilitating or inducing child prostitution under Section 5 (a) thereof. (People vs. Tulugan,
G.R. No. 227363, March 12, 2019) This view in the Tulugan case is not controlling. Several cases
affirmed the convictions for sexual abuses of the accused, who themselves employed coercion or
influence in order for the minor victims to submit themselves to lascivious conduct. (See: Rarang vs.
People, G.R. No. 226760, August 14, 2019, Satur vs. People, G.R. No. 245375, June 19, 2019, People
vs. Veron, G.R. No. 239028, April 10, 2019; People vs. LCU, G.R. No. 234319, April 10, 2019, and De
Joan vs. People, G.R. No. 232957, September 25, 2019)

In Quimvel vs. People, G.R. No. 214497, April 18, 2017, participation of a third person is not essential
in sexual abuse. It is immaterial whether or not the accused himself employed the coercion or
influence to subdue the will of the child for the latter to submit to his sexual advances for him to be
convicted of sexual abuse. Sexual abuse can be committed by "any adult, syndicate or group" without
qualification.

Sex with a child per se is not a crime – There are several cases where sex with a child constitutes
crime. Sexual intercourse with a child under 12 years of age is statutory rape. Influencing the child in
having sex constitutes sexual abuse. In Caballo v. People, G.R. No. 198732, June 10, 2013, the
assurance of love, guarantee that she would not get pregnant by using the withdrawal method and
the promise of marriage were classified as psychological coercion and influence within the purview of
Section 5 of R.A. No. 7610 used by the accused to convince his minor girlfriend to have sex with him.
Hence, accused is guilty of sexual abuse.

However, sex with a child per se is not a crime. What is punishable under R.A. No. 7610 is sexual
abuse with a child. Sexual abuse is more than a mere sexual intercourse or lascivious conduct with a
child. (See: People v. Hon. Court of Appeals, G.R. No. 171863, August 20, 2008)

Consent is immaterial in cases involving sexual abuse under R.A. No. 7610 where the offended party
is below 12 years of age. However, consent is material when the offended party is a child, who is 12
years old or above. In such a case, consent of the child is a defense in cases involving sexual abuse.
Consent as a defense is either express or implied. Consent is implied if the prosecution failed to
prove that the child had sex with accused due to money, profit or consideration, or coercion or
influence. (People vs. Tulugan, G.R. No. 227363, March 12, 2019)

Under the Civil Code, all individuals under 18 years of age have no capacity to act or the power to do
acts with legal effects. The law limits, to varying degrees, the capacity of an individual to give
consent. While in general, under the civil law concept of consent, in relation to capacity to act, the
same concept cannot be applied to consent within the context of sexual predation. Under civil law,
the concept of "capacity to act" under civil law limits the capacity to give a valid consent which
generally refers to the meeting of the offer and the acceptance upon the thing and the case which
are to constitute the contract. Capacity to act under civil law cannot be equated to capacity to give
sexual consent for individuals between 12 years old and below 18 years old. Sexual consent does not
involve any obligation within the context of civil law and instead refers to a private act or sexual
activity that may be covered by the Revised Penal Code and R.A. 7610. (People vs. Tulugan, supra)

The age of sexual consent in the Philippines is 12 years old. According to United Nations
International Children's Emergency Fund, this is "one of the lowest globally and the lowest in the
Asia-Pacific region." The average age of consent is 16 years old. The age of majority, however, is 18
years old. Minors, or those below 18, have no capacity to enter into any contracts or marriage. Yet,
strictly reading the provisions of the Revised Penal Code, any minor above 12 years old may validly
consent to sexual intercourse and lascivious conduct with an adult. (Concurring opinion of Justice
Leonen in People vs. Tulugan, supra)

In Bangayan vs. People, G.R. No. 235610, September 16, 2020, it is now clear that consent is a
material factor in determining the guilt of accused, who is charged with sexual abuse against a child
whose age is 12 years and one month. In Monroy (G.R. No. 235799, July 29, 2019), then 28-year-old
accused was charged with violation of Section 5 (b) of R.A. 7610 for inserting his penis into the vagina
of a 14-year-old. The Court acquitted the accused on reasonable doubt, finding that the sexual
intercourse that transpired between the accused and the 14-year-old was consensual and that the
case against the accused is based merely on trumped-up allegations meant as retaliation. In Monroy,
the accused was 14 years older than victim yet the Court found that she was not subjected to other
sexual abuse due to the coercion of an adult as they were in a relationship. Similarly, in the present
case, the accused was more or less 15 years older than AAA. While difference in age may be an
indication of coercion and intimidation and negates the presence of sexual consent, this should not
be blindly applied to all instances of alleged sexual abuse cases. In this case, there are special
circumstances that reveal the presence consent of AAA. The sexual congress between accused and
AAA was not limited to just one incident. They were in a relationship even after the incident alleged
in the Information and had even produced two (2) children. It is clear that AAA, who is capable to
discern good from evil, give consent to the sexual act. Accused was acquitted. Justice Leonen in his
dissenting opinion stated with the greatest respect, I cannot accept that our laws can be interpreted
so that a 12-year-old girl, barely in the sixth grade, can give her mature consent to sexual intercourse.
Sexual intercourse is a complex act which is not only physical or sensual.

New designation of sexual abuse - Since time immemorial the Supreme Court is using the title of a
penal provision, and not a word in the body to describe a crime. For example, the crime under Article
249 of the Revised Penal Code is called homicide since the title of this provision is homicide.
Although the word “kill” is found in the body of this provision, there is no occasion where the crime
under Article 249 is described as “killing.”

The title of Article 5 of RA No. 7610 is “child prostitution and other sexual abuse.” However, the word
“lascivious conduct” is found in the body of Section 5

(b) of RA No. 7610. In People vs. Larin, G.R. No. 128777, October, 7 1998 and other cases, the
Supreme Court described the crime involving lascivious conduct under Section 5 (b) of RA No. 7610
as sexual abuse. It is submitted that this is the correct name of the crime. However, in the case of the
Tulugan case, proper nomenclature of the offense involving lascivious conduct under Section 5 (b) is
now “lascivious conduct” under RA No. 7610. (People vs. Molejon, G.R. No. 208091, April 23, 2018;
ZZZ vs. People, G.R. No. 243467, April 08, 2019; De Joan vs. People, G.R. No. 232957, September 25,
2019; People Vergara, G.R. No. 242477, September 2, 2019) For purpose of the bar examination, the
Tulugan case should be followed.

SEXUAL ABUSE AND FELONY - If the acts constitute sexual abuse, and rape, sexual assault, or acts of
lasciviousness, the offender shall be prosecuted either under RPC or R.A. No. 7610 (People vs. Abay,
G.R. No. 177752, February 24, 2009), whichever prescribes a graver penalty. (Dimakuta v. People,
G.R. No. 206513, October 20, 2015; Justice Leonen concurred; People vs. Tulugan, G.R. No. 227363,
March 12, 2019) The higher penalty under either law must be applied for the minor victim’s benefit.
Imposing a lower penalty for the offender is undeniably unfair to the child victim. (People v. Pusing,
G.R. No. 208009, July 11, 2016).

1. Sexual abuse and rape - If the acts constitute sexual abuse under RA No. 7610, and rape, the
perpetrator shall be prosecuted under RPC. The penalty under RPC for rape is graver than that
prescribes by RA No. 7610. Rape is severely penalized because it may lead to unwanted procreation;
or to paraphrase the words of the legislators, it will put an outsider into the woman who would bear
a child, or to the family, if she is married. (People vs. Tulugan, supra) Where a minor is raped, RPC
ought to prevail over RA 7610. (People vs. Ejercito, supra) Moreover, RA No. 8353, which amended
RPC on rape, is the more recent and special penal legislation and this law strengthens the policies of
RA No. 7610. (People vs. Briones, G.R. No. 240217, June 23, 2020)

If the acts constitute sexual abuse under RA No. 7610, and special complex crime of sexual assault
with homicide, the perpetrator shall be prosecuted under RPC. The penalty under RPC for sexual
assault with rape is graver than that prescribes by RA No. 7610.

2. Sexual abuse (now lascivious conduct), and sexual assault or acts of lasciviousness – If the
acts constitute sexual abuse (now lascivious conduct) under RA No. 7610, and sexual assault or acts
of lasciviousness, the perpetrator shall be prosecuted under RA No. 7610. The penalty for sexual
abuse (now lascivious conduct) under RA No. 7610 is graver than that for acts of lasciviousness or
sexual assault under RPC.
3. Special rules if the child is under 12 years of age - There are special rules under Section 5 (b)
of RA No. 7610 if the child exploited in prostitution or sexual abuse is under 12 years of age. A
demented person (idiot, imbecile, and feebleminded), whose metal age is under 12 years, is covered
by these rules. (People v. Pusing, supra; People vs. Tulugan, supra) If the acts constitute sexual
abuse under RA No. 7610, and rape or acts of lasciviousness, the perpetrator shall be prosecuted
for statutory rape under RPC, or acts of lasciviousness under RPC in relation to RA No. 7610.

a. rape - Under Section 5 (b) of RA No. 7610, that when the child exploited in prostitution or
sexual abuse is under 12 years of age (or demented), the perpetrators shall be prosecuted for
statutory rape.

Sexual abuse under RA No. 7610 is separate and distinct from statutory rape under RPC. Aside from
being dissimilar in the sense that the former is an offense under special law, while the latter is a
felony under the Code, they also have different elements. Nevertheless, sexual intercourse with a
victim who is under 12 years of age or is demented is always statutory rape, as Section 5(b) of R.A.
No. 7610 expressly states that the perpetrator will be prosecuted under Code. (People vs. Tulugan,
supra)

Even if the girl who is below twelve (12) years old or is demented consents to the sexual intercourse,
it is always a crime of statutory rape under the Revised Penal Code, and the offender should no
longer be held liable under R.A. No. 7610. For example, a nine (9)-year-old girl was sold by a pimp to
a customer, the crime committed by the latter if he commits sexual intercourse with the girl is still
statutory rape (and not child prostitution), because even if the girl consented or is demented, the law
presumes that she is incapable of giving a rational consent. (People vs. Tulugan, supra)

b. Acts of lasciviousness – Under Section 5 (b) of RA No. 7610, that when the child exploited in
prostitution or sexual abuse is under 12 years of age (or demented), the perpetrator shall be
prosecuted for acts of lasciviousness with the penalty of reclusion temporal in its medium period. In
sum, he shall be prosecuted under the Revised Penal Code but the imposable penalty is that
prescribed under RA no. 7610. Thus, the proper nomenclature of this crime is acts of lasciviousness
under RPC in relation to RA No. 7610. (People vs. Tulugan, supra)

If the accused committed acts of lasciviousness against a child exploited in prostitution or sexual
abuse, who is under 12 years of age or demented, the former shall be prosecuted for acts of
lasciviousness under RPC with the penalty of reclusion temporal in its medium period under RA No.
7610. (People vs. Molejon, G.R. No. 208091, April 23, 2018; Granton vs. People, G.R. No. 226045,
October 10, 2018; Francisco vs. People, G.R. No. 241452, March 25, 2019; People vs. ZZZ, G.R. No.
232500, July 28, 2020)

To apply the penalty of reclusion temporal in its medium period pursuant to the second proviso, the
requisites of acts of lasciviousness must be met in addition to the requisites for sexual abuse or child
prostitution. (Quimvel v. People, supra; Ramilo vs. People, G.R. No. 234841, June 3, 2019; People vs.
Basa, G.R. No. 237349, February 27, 2019)

The accused is charged of acts of lasciviousness against an under-12-year- old child. The information
alleged “force and intimidation,” which is an element of acts of lasciviousness under RPC but it does
not aver "coercion or influence,” which is an element of sexual abuse under RA No. 7610. But it was
ruled that the term "coercion and influence" is broad enough to cover "force and intimidation” as
alleged in the information. Committing lascivious conduct against an under- 12-year-old child is
statutory acts of lasciviousness. Committing lascivious conduct against a child under coercion or
influence is sexual abuse. Since the elements of acts of lasciviousness and those of sexual abuse are
proven, the accused is convicted of acts of lasciviousness under RPC in relation to RA No. 7610.
(Quimvel v. People, supra)

c. Simple sexual assault – If the accused committed sexual assault against a child exploited in
prostitution or sexual abuse, who is under 12 years of age or demented, will the court impose the
penalty of prision mayor for sexual assault under RPC as amended by RA No. 8353, or reclusion
temporal in its medium under Section 5 (b) of RA No. 7610? In this situation, the court in convicting
the accused for sexual assault must impose the graver penalty under RA No. 7610 on the following
reasons:

1. To impose the lighter penalty under RPC is unfair to the victim. To prevent unfairness, the
court must impose graver penalty under R.A. No. 7610. (People v. Chingh, G.R. No. 178323, March
16, 2011)

2. R.A. No. 7610 is a special law which should clearly prevail over R.A. 8353, which is a mere
general law amending the Revised Penal Code. (Granton vs. People, G.R. No. 226045, October 10,
2018; Ricalde v. People, G.R. No. 211002, January 21, 2015, Justice Leonen, and People vs. Adajar,
G.R. No. 231306, June 17, 2019; Miranda vs. People, G.R. No. 232192, June 22, 2020, Justice
Leonen; People vs. Sumayod, G.R. No. 230626, March 09, 2020, Justice Leonen)

In this situation, the crime should be called as “sexual assault” under RPC in relation to RA No. 7610.
(People vs. Tulugan, supra; Ramilo vs. People, G.R. No. 234841, June 3, 2019; People vs. XXX, G.R. No.
230981, July 15, 2020)

In People v. Chingh, G.R. No. 178323, March 16, 2011- the accused the force inserted his finger into
the genital orifice of a child, who is 10 years old. The victim is a child exploited in sexual abuse since
the element of coercion is present. Since the victim is under 12 years of age, the crime committed is
statutory sexual assault. The penalty for sexual assault under RPC is prision mayor. On the other
hand, the penalty for lascivious conduct under second proviso of Section 5 (b) RA No. 7610 is
reclusion temporal in its medium period. To impose the lighter penalty under RPC is unfair to the
victim. To prevent unfairness, the Supreme Court imposed the graver penalty under R.A. No. 7610. In
sum, the accused is convicted of simple sexual assault under RPC in relation of RA No. 7610.

d. Qualified sexual assault – The crime is qualified sexual assault if qualifying circumstance such
as relationship and minority is present. If the accused committed qualified sexual assault against a
child exploited in prostitution or sexual abuse, who is under 12 years of age or demented, will the
court impose the penalty of reclusion temporal for sexual assault under RPC as amended by RA No.
8353, or reclusion temporal in its medium under Section 5

(b) of RA No. 7610? In this situation, the court in convicting the accused for qualified sexual
assault must impose the graver penalty under RPC. Since rationale of unfairness to the child victim
that Chingh case wanted to correct is absent because RPC already prescribes the high penalty, there
is no need to apply the penalty under RA No. 7610. (People v. Bonaagua, G.R. No. 188897, June 6,
2011)

Accused inserted his penis into the mouth of his foster child, whose actual age is above 12 years old,
but her mental age is 9 years old. The crime committed is statutory sexual assault. The qualifying
circumstances of minority and guardianship, and mental disability are present. Since the mental age
of the victim is under 12 years, first proviso Section 5 (b) of RA No. 7610 is applicable. Under this
provision, if the perpetrator had lascivious conduct with a child exploited in sexual abuse, who is
under 12 years old, the former shall be prosecuted for rape under RPC, which includes qualified
sexual assault. ( People v. Pusing, G.R. No. 208009, July 11, 2016, Justice Leonen)

Summary - If the victim of sexual offense is a child in EPSOSA (exploited in prostitution or subject to
other sexual abuse), the following rules should be observed.

1. Rape - If the act constitutes rape under RPC and sexual abuse RA No. 7610, the accused shall
be prosecuted under RPC, since this law prescribes a higher penalty. If the act constitutes statutory
rape and sexual abuse, the accused shall be prosecuted under RPC, since Section 5 (b) of RA No. 7610
says so.

2. Acts of lasciviousness - If the act constitutes acts of lasciviousness under RPC and sexual
abuse under RA No. 7610 committed against a child, who is 12 years of age or above, the accused
shall be prosecuted under RA No. 7610, since this law prescribes a higher penalty. The crime will be
designated as lascivious conduct.

If the act constitutes acts of lasciviousness under RPC and sexual abuse under RA No. 7610
committed against a child, who is under 12 years of age, the accused shall be prosecuted for acts of
lasciviousness under RPC but the penalty of reclusion temporal in its medium period under RA No.
7610 shall be imposed. The crime will be designated as acts of lasciviousness under RPC in relation to
RA No. 7610.

3. Sexual assault - If the act constitutes sexual assault under RPC and sexual abuse under RA No.
7610 committed against a child, who is 12 years of age or above, the accused shall be prosecuted
under RA No. 7610, since this law prescribes a higher penalty. The crime will be designated as
lascivious conduct.

If the act constitutes sexual assault under RPC and sexual abuse under RA No. 7610 committed
against a child, who is under 12 years of age, the accused shall be prosecuted for sexual assault
under RPC but the penalty of reclusion temporal in its medium period under RA No. 7610 shall be
imposed. It is not the intention of RA No. 8353, which introduces sexual assault in RPC, to disallow
the penalty under RA No. 7610. To impose the lesser penalty of prison mayor under RA No. 8353 for
sexual assault is unfair to the child. The crime will be designate as sexual assault under RPC in
relation to RA No. 7610.

If the act constitutes qualified sexual assault under RPC and sexual abuse under RA No. 7610
committed against a child, who is under 12 years of age, the accused shall be prosecuted for qualified
sexual assault with the penalty of reclusion temporal under RPC. The penalty of reclusion temporal in
its medium period under RA No. 7610 shall not be imposed. In sum, the Chingh principle will not
apply since RPC already prescribes a graver penalty. The circumstance of unfairness, which the
Chingh case sought to correct, is not present in this case. The crime will be designate as qualified
sexual assault.

Coercion and influence - The term "coercion and influence" is broad enough to cover "force and
intimidation”. In fact, as these terms are almost used synonymously, it is then of no moment that the
terminologies employed by RA 7610 and by the Information are different. (Quimvel v. People, G.R.
No. 214497, April 18, 2017; People vs. Ejercito, G.R. No. 229861, July 2, 2018; People vs. Tulugan,
G.R. No. 227363, March 12, 2019)

The accused is charged of acts of lasciviousness. The information alleged “force and intimidation,”
which is an element of acts of lasciviousness under RPC but it does not aver "coercion or influence,”
which is an element of lascivious conduct under RA No. 7610. The accused may be convicted of the
graver crime of lascivious conduct under RA No. 7610. (People vs. Molejon, G.R. No. 208091, April 23,
2018)

Double jeopardy - If the acts constitute sexual abuse (or child prostitution), and rape or acts of
lasciviousness, the offender cannot be prosecuted for both crimes because of the rule on double
jeopardy.

The essence of sexual abuse and rape or acts of lasciviousness is having sexual intercourse or
lascivious conduct with a victim without her consent, or capacity to give consent. Since these crimes
are identical, the Supreme Court in People vs. Abay, G.R. No. 177752, February 24, 2009 ruled that
the accused cannot be held liable of both crimes because his right against double jeopardy will be
prejudiced.

Other view: In People vs. Udang, G.R. No. 210161, January 10, 2018, the Supreme Court, Third
Division, through Justice Leonen ruled that offender can be liable for rape and sexual abuse because
they are separate crimes with distinct elements. It seems that Udang case is a stray decision. The
Abay principle is controlling since it was affirmed by the Supreme Court in several cases such as
People vs. Dahilig, G.R. No. 187083, June 13, 2011; People vs. Matias, G.R. No. 186469, June 18,
2012; Alberto vs. Hon. Court of Appeals, G.R. No. 182130, June 19, 2013; People vs. Ejercito, G.R. No.
229861, July 02, 2018; People vs. Jaime, G.R. No. 225332, July 23, 2018; People vs. Mabalo, G.R. No.
238839, February 27, 2019 and People vs. Tulugan, supra.

Sexual abuse and child abuse – Section 5 (b) of RA 7610 specifically applies in cases of sexual
abuse committed against children, which includes lascivious conduct; whereas, Section 10 (a)
thereof punishes other forms of child abuse not covered by particular provisions of RA 7610.
Evidently, the offense will not fall within the purview of Section 10 (a) of RA 7610 if the same is
specifically penalized by a particular provision, such as Section 5 (b). (Encinares vs. People, G.R. No.
252267, January 11, 2021)

The petitioner's acts of putting AAA's penis inside his mouth and playing with it for ten (10) minutes
constitute lascivious conduct under Section 5 (b) of RA 7610. As such, it was an error for the courts a
quo to have convicted him under Section 10 (a) of the same Act. True, the Information filed against
petitioner charged him under Section 10 (a) of RA 7610. However, it is a well-settled rule that the
facts alleged in the body of the information, not the technical name given by the prosecutor
appearing in the title of the information, determine the character of the crime. (Encinares vs. People,
supra)

SEXUAL HARASSMENT - The elements of the crime of sexual harassment in a work-related or

employment environment under RA No. 7877 are:

1. The offender has authority, influence or moral ascendancy over victim; and

2. The authority, influence or moral ascendancy exists in a

work environment;

3. (a) The sexual favor is made as a condition in the employment or continued employment of
victim or in granting her favorable terms or privileges; or

(b) The refusal to grant the sexual favor results in her discrimination or impairment of her rights
or privileges; or

(c) the demand for sexual favor would result in an intimidating, hostile, or offensive
environment for the employee.
The elements of the crime of sexual harassment in an education or training environment under RA
No. 7877 are: and

1. The offender has authority, influence or moral ascendancy over victim;

2. The authority, influence or moral ascendancy exists in a

work environment;

3. (a) The sexual favor is made a condition to the giving of a passing grade, or the granting
privileges; or

(b) when the sexual advances result in an intimidating, hostile or offensive environment for the
student, trainee or apprentice.

Authority or Ascendency - The key elements which distinguish sexual harassment, as penalized by
Republic Act 7877, from other chastity-related and vexatious offenses are: first, its setting; and
second, the person who may commit it. As to its setting, the offense may only be committed in a
work-related, training- related, or education-related environment. As to the perpetrator, it may be
committed by a person who exercises authority, influence, or moral ascendancy over another.
(Escandor vs. People, G.R. No. 211962, July 06, 2020, Justice Leonen)

The gravamen of the offense in sexual harassment is not the violation of the employee's sexuality but
the abuse of power by the employer. (LBC vs. Palco, G.R. No. 217101, February 12, 2020, Justice
Leonen)

Sexual harassment is not a trivial offense. Its essence lies not in the- simple violation of a victim's
sexuality, but in a superior's undue exertion of power over the victim. Inherent in this predatory act
is the assailant's perverted use of power to dominate his or her subordinate for sexual favors. Sexual
harassment in the workplace is not about a person taking advantage of another person by reason of
sexual desire; it is about power being exercised by a superior officer over his or her subordinates. The
power emanates from the fact that the superior can remove the subordinate from his or her
workplace if the latter would refuse his or her amorous advances. (Talens-Dabon vs. Arceo, A.M. No.
RTJ-96-1336, June 02, 2020, Concurring Opinion by Justice Leonen; Philippine Aeolus Automotive
United Corp. v. NLRC, G.R. No. 124617, April 28, 2000) Alegria v. Duque, A.M. No. RTJ-06-2019, April
4, 2007)

Sexual harassment can be committed by an employer, employee, manager, supervisor, agent of the
employer, teacher, instructor, professor, coach, trainer or any other person, who has authority,
influence or moral ascendancy over victim. It can also be committed against one who is under the
care, custody or supervision of the offender or against one whose education, training, apprenticeship
or tutorship is entrusted to the offender. (Section 3 of R.A. No. 7877) Moral ascendancy as an
element of sexual harassment is present if the respondent recommended complainant to her present
position. (Alegria v. Duque, A.M. No. RTJ-06-2019, April 4, 2007)

A process server cannot commit the crime of sexual harassment against a janitress of a private
company assigned in the Hall of Justice since the former has no moral ascendency over the latter.
However, he can be held administrative liability for committing an immoral act. (Lamsis v. Sales, A.M.
No. P-17-3772, January 10, 2018) Moreover, the process server can be held criminally liable for
gender-based sexual harassment under RA No. 11313 (Safe-space Act). Under RA No. 11313, the
crime of gender-based sexual harassment may also be committed between peers and those
committed to a superior officer by a subordinate, or to a teacher by a student, or to a trainer by a
trainee.
The Safe Spaces Act does not undo or abandon the definition of sexual harassment under the Anti-
Sexual Harassment Law of 1995. The gravamen of the offenses punished under the Safe Spaces Act is
the act of sexually harassing a person on the basis of the his/her sexual orientation, gender identity
and/or expression, while that of the offense punished under the Anti-Sexual Harassment Act of 1995
is abuse of one's authority, influence or moral ascendancy so as to enable the sexual harassment of a
subordinate. (Escandor vs. People, G.R. No. 211962, July 06, 2020, Justice Leonen)

Work or Training, or Education Environment - Sexual harassment under RA No. 7877 can only be
committed in a work, training, or education environment. If an offender sexually harassed his
neighbor in a street, the crime committed is not sexual harassment under RA No. 7877 but gender
based sexual harassment under RA No. 11313 (Safe-space Act), acts of lasciviousness, sexual abuse or
any other crime.

Gender-based sexual harassment under RA No. 11313 is committed in a public space (e.g. schools,
churches, restaurants or streets) or through on-line. (Section 3 and 4 of RA No. 11312) Sexual
harassment in a private place is not punishable under RA No. 11313. For example, Pedro inside his
house uttered to Maria, his cousin, “Palaki ng palaki wetpu mo, papisil naman.” Since a private house
is not within the contemplation of the word “public spaces” under RA No. 11313, the crime
committed is unjust vexation, and not gender-based sexual harassment.

Demand, Request or Require Sexual Favor - In sexual harassment, the offender demands, requests or
otherwise requires any sexual favor from the victim. Sexual harassment is committed regardless of
whether or not the demand, request or requirement for sexual submission is accepted by the victim.
Hence, sweetheart defense cannot be upheld in favor of offender in sexual harassment case.

In Jacutin v. People, G.R. No. 140604, March 6, 2002, complainant was seeking employment in the
city health office headed by the accused. While the appointing authority is the mayor, the
recommendation of the accused has a good weight. Accused demanded from complainant that she
should expose her body and allow her private parts to be mashed and stimulated by him as a
condition for her employment. He was convicted of sexual harassment.

1. Implied Demand – R.A. No. 7877 calls for a “demand, request or requirement of a sexual
favor.” But it is not necessary that the demand, request, or requirement of a sexual favor be
articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from
the acts of the offender. (Bacsin v. Wahiman, G.R. No. 146053, April 30, 2008; Domingo v. Rayala,
supra; Escandor vs. People, G.R. No. 211962, July 06, 2020, Justice Leonen)

In Bacsin v. Wahiman, supra, even without an express demand from respondent, a school teacher,
his act of mashing the breast of his student was sufficient to constitute sexual harassment.

Accused committed several acts of harassment such as grabbing hand of complainant, kissing,
engaging in improper conversations, touching her thigh, giving her gifts, telling her that "she was the
kind of girl he really wants," asking her out on dates, and sending her text and Winpop messages
telling her that he missed her, that she looked beautiful, and that he loved her. These acts
undoubtedly amount to a request for sexual favors. (Escandor vs. People, supra, Justice Leonen)

If the offender has moral ascendency over the victim and the former committed sexual advances on
the latter, implied request or demand for sexual favor is present. Hence, sexual harassment is
committed.

In Narvasa v. Sanchez, G.R. No. 169449, March 26, 2010, during a field trip, respondent, a municipal
assessor, pulled complainant, a bookkeeper, towards him and attempted to kiss her. Complainant
resisted and was able to escape the clutches of respondent. His act of grabbing complainant and
attempting to kiss her without her consent was an unmistakable manifestation of his intention to
violate R.A. No. 7877 that specifically prohibited sexual harassment in the work environment.

In Gonzales v. Serrano, G.R. No. 175433, March 11, 2015, Atty. Jacinto Gonzales, direct superior of
the complainant, forcibly kissed her lips in the restaurant in front of her officemates and other
customers. She tried to ward off Atty. Gonzales by pulling her head away from him, but he persisted
on kissing her against her will. After releasing her, Atty. Gonzales said: “Ang sarap pala ng labi ni
Maila.” Atty. Gonzales violated R.A. No. 7877.

In Aquino v. Acosta, A.M. No. CTA-01-1, April 2, 2002, the case for sexual harassment against a judge
was dismissed for failure to show that he demanded, requested or required any sexual favor from
complainant in exchange for favorable compensation, terms, conditions, promotion or privileges.
Thus, it appears that sexual demand, request or requirement is an essential element of sexual
harassment. However, Domingo vs. Rayala, G.R. No. 155831, February 18, 2008, the Supreme Court
ruled that it is not essential that the demand, request or requirement be made as a condition for
continued employment or for promotion to a higher position. It is enough that the respondent’s acts
result in creating an intimidating, hostile or offensive environment for the employee. In this case, the
intimidating and hostile environment for complainant is clearly shown by the fact that she reported
the matter to an officemate and, after the last incident, filed for a leave of absence and requested
transfer to another unit. Respondent found to have committed sexual harassment.

2. Friendly Kiss – In Aquino v. Acosta, A.M. No. CTA-01-1, April 2, 2002, Atty. Susan M. Aquino,
personnel of Court of Tax Appeals (CTA), charged CTA Judge Ernesto Acosta with sexual harassment
under R.A. 7877. In one occasion, respondent kissed her on her cheek after greeting her. In another
occasion, respondent shook her hand and greeted her, “Merry Christmas” and then, he embraced
her and kissed her. When the Senate approved the bill on expanded jurisdiction of the CTA and while
complainant and her companions were congratulating and kissing each other, respondent suddenly
placed his arms around her shoulders and kissed her. According to the Supreme Court, the conducts
of respondent in kissing the complainant are casual gestures of friendship and camaraderie, nothing
more, nothing less. There is no indication that respondent was motivated by malice or lewd design.
Evidently, she misunderstood his actuations and construed them as work-related sexual harassment
under R.A. No. 7877. (Cited in the case of Escandor vs. People, Justice Leonen)

A mere casual buss on the cheek of the complainant during festive or special occasions in front of
several persons is not a sexual advance within the purview of sexual harassment under R.A. No.
7877. (Aquino v. Acosta, supra) But a kiss on her lips of the complainants (Atty. Mona Lisa
Buencamino v. Judge Armando De Asa, Adm. Matter No. MTJ-98-1144, July 22, 1998; Narvasa v.
Sanchez, supra) even in a public place (Gonzales v. Serrano, supra); or holding and squeezing
complainant’s shoulders, running his fingers across her neck and tickling her ear, and the
inappropriate comments made in privacy (Domingo v. Rayala, supra) constitute sexual harassment
within the contemplation of R.A. No. 7877.

The case of Aquino is different from Domingo. While in Aquino, the Court interpreted the acts (of
Judge Acosta) as casual gestures of friendship and camaraderie, done during festive or special
occasions and with other people present, in Domingo, Rayala’s acts of holding and squeezing
Domingo’s shoulders, running his fingers across her neck and tickling her ear, and the inappropriate
comments, were all made in the confines of Rayala’s office when no other members of his staff were
around. More importantly, and a circumstance absent in Aquino, Rayala’s acts produced a hostile
work environment for Domingo, as shown by her having reported the matter to an officemate and,
after the last incident, filing for a leave of absence and requesting transfer to another unit.

RA No. 7877 does not require that the victim had acceded to the sexual desires of the abuser.
(Anonymous complaint against Atty. Unitian, A.C. No. 5900, April 10, 2019) Mere demand or request
for sexual favor consummates the crime of sexual harassment. Actual commission of sexual advances
is not required for the consummation of this crime. However, if the offender, who has ascendancy
over the victim, already performed sexual acts upon her, he shall be exposed to criminal liability for a
grave crime such sexual abuse under R.A. No. 7610, acts of lasciviousness, or rape by means of grave
abuse of authority. In People v. Larin, G.R. No. 128777, October, 7 1998, a swimming instructor was
convicted for sexual abuse under R.A. No. 7610 for performing cunnilingus on her, licking her breast,
touching her genitalia, and forcing her to hold his sexual organ.

Discrimination or impairment of her rights - Transferring a subordinate to place without telephone

for refusal to submit herself to the sexual desire of her superior, which impaired her privilege as an
employee, constitutes sexual harassment (Philippine Aeolus Automotive United Corp. v. NLRC, G.R.
No. 124617, April 28, 2000)

Intimidating, hostile or offensive environment - It is not essential that the demand, request or
requirement be made as a condition for continued employment or for promotion to a higher
position. It is enough that the respondent’s acts result in creating an intimidating, hostile or offensive
environment for the employee. (Domingo v. Rayala, supra) In sum, creating an intimidating, hostile or
offensive environment is an element of sexual harassment, which is an alternative to sexual demand,
request or requirement.

In 1964, in the United States, the Civil Rights Act prohibited acts of discrimination on the basis of sex,
among others. American jurisprudence subsequently recognized two (2) categories of sexual
harassment: first, quid pro quo; and second, hostile environment sexual harassment. Quid pro quo
harassment conditions employment or job benefits on sexual favors; while hostile environment
sexual harassment results from sexual advances which make the working environment hostile or
abusive to the employee. The two types of sexual harassment recognized in American jurisprudence
are akin to sexual harassment as defined under RA no. 7877. Section 3(a)(l) similarly recognizes that
sexual harassment is committed when a sexual favor is made a condition for employment or for
the grant of certain benefits. Likewise, Section 3(a)(3) recognizes sexual harassment as
committed when the offender's advances result in an intimidating, hostile, or offensive environment
for the employee. (Escandor vs. People, Justice Leonen)

In Domingo v. Rayala, supra, intimidating and hostile environment for complainant is clearly shown
by the fact that she reported the matter to an officemate and, after the last incident, filed for a leave
of absence and requested transfer to another unit.

In Bacsin v. Wahiman, supra, complainant testified that she felt fear at the time respondent touched
her. The act of respondent of fondling one of his students is against R.A. No. 7877 since such sexual
advances result in an intimidating, hostile or offensive environment to her. Dal recounted that in one
of her recitations during respondent's class, she clarified a question propounded to her saying "Sir,
come again?" Respondent retorted "What? You want me to come again? I have not come the first
time and don't you know that it took me five minutes to come, and you want me to come again?"
She later learned that respondent would narrate the said incident to almost all of his classes. Dal felt
offended that she was subjected to such sexually charged language and the fact that her
embarrassment was retold in other classes.
Respondent's conduct towards his student created a hostile and offensive environment which has no
place in a learning institution. Respondent's statement to complainant during her recitation in class
cannot be categorized as an innocent joke only meant to lighten the mood of the class. It is readily
apparent that the remark is tasteless, vulgar and crude and has no place in any academic setting. It is
not a clever word play or a mere statement with sexual innuendos as its intended meaning is
obviously discernable. Respondent's attempt at humor miserably fails as his words clearly refer to
him needing five minutes to ejaculate again. Respondent's statements made Dal uncomfortable and
embarrassed in front of her classmates as it went beyond an innocent joke and was instead a gross,
graphic and an insensitive remark. (Anonymous complaint against Atty. Unitian, A.C. No. 5900, April
10, 2019)

Prescription - Acts of sexual harassment by the accused persisted up to the time that complainant’s
employment ended. By the time she filed her Complaint-Affidavit, only about nine (9) months had
lapsed. This is well-within the three (3) years permitted by Section 7 of RA No. 7877 within which an
action under the same statute may be pursued. (Escandor vs. People, Justice Leonen)

Civil liability – Criminal liability for sexual harassment notwithstanding, the offended party may
pursue a separate civil action. Section 6 of RA No. 7877 provides that nothing in this Act shall
preclude the victim of work, education, or training-related sexual harassment from instituting a
separate and independent action for damages and other affirmative relief. Being independent from
criminal action, the conviction or acquittal of the accused is not a bar to an independent suit for
damages in a civil action. In fact, an independent action for damages against the accused is allowed
despite the existence of an ongoing criminal case. (Escandor vs. People, Justice Leonen)

Under Section 5 of RA No. 7877, the employer is only solidarity liable for damages with the
perpetrator in case an act of sexual harassment was reported and it did not take immediate action on
the matter. This provision thus illustrates that the employer must first be informed of the acts of the
erring managerial officer before it can be held liable for the latter's acts. Conversely, if the employer
has been informed of the acts of its managerial staff, and does not contest or question it, it is
deemed to have authorized or be complicit to the acts of its erring employee. (LBC vs. Palco, G.R. No.
217101, February 12, 2020, Justice Leonen)

TERRORISM - Before terrorism is punishable under RA No. 9372 or the Human Security Law.
However, Section 56 of RA No. 11479 expressly repeals RA No. 9372. Terrorism is now punishable
under RA No. 11479.

Under Section 4 of RA No. 11479, terrorism is committed by any person who, within or outside the
Philippines, regardless of the stage of execution:

(a) Engages in acts intended to cause death or serious bodily injury to any person, or endangers
a person's life;

(b) Engages in acts intended to cause extensive damage or destruction to a government or

public facility, public place or private property;

(c) Engages in acts intended to cause extensive interference with, damage or destruction to
critical infrastructure;

(d) Develops, manufactures, possesses, acquires, transports, supplies or uses weapons,

explosives or of biological, nuclear, radiological or chemical weapons; and
(e) Release of dangerous substances, or causing fire, floods or explosions when the purpose of
such act, by its nature and context, is to intimidate the general public or a segment thereof, create an
atmosphere or spread a message of fear, to provoke or influence by intimidation the government or
any international organization, or seriously destabilize or destroy the fundamental political,
economic, or social structures of the country, or create a public emergency or seriously undermine
public safety.

Composition of terrorism - Terrorism is composed of criminal act and criminal intention (or purpose).
For example, engaging in acts intended to cause death person is the criminal act while intimidating
the general public is the criminal intention.

Intent to intimidate the general public - Pedro out of jealousy threw hand grenade at her wife and
paramour at Luneta. As a consequence, the victims died. Several persons at Luneta were terrified.
This is not terrorism but a complex crime of parricide and murder. The reason behind the killings is
personal. There is no intention to intimidate the general public, create an atmosphere or spread a
message of fear, or provoke or influence by intimidation the government.

Pedro detonated a time bomb in LRT, and caused death and serious bodily injury to several persons,
endangers the life of others, and causes extensive damage a critical infrastructure. By its nature and
context, the bombing intimidated the general public and created an atmosphere or spread a message
of fear. This is terrorism. Direct evidence that the purpose of Pedro is to intimidate the general public
is not required. The phrase “by its nature and context” means that the court can determine that the
purpose of the offender in detonating a bomb is to intimidate the general public by taking into
consideration nature and context of criminal act.

In terrorism under RA No. 9372, a predicate crime such as murder must create a condition of
widespread and extraordinary fear and panic among the populace. However, under RA No. 11479,
widespread fear to the populace is not an element of terrorism since this crime can be committed
although the intention of the terrorists is merely to intimidate “segment” of the general public.

Intimidate the government or international government - The word “government” in RA No. 11479
which the terrorists intend to provoke or influence by intimidation includes foreign government. The
law uses the word “government” without making a distinction between Philippine government and
foreign government. It is a well-known maxim in statutory construction that where the law does not
distinguish, we should not distinguish.

The word “international organization” in RA No. 11479 which the terrorists intend to provoke or
influence by intimidation refers to an organization established by a treaty or other instrument
governed by international law and possessing its own international legal personality. United Nation
and World Health Organization are international organizations.

Pedro, a member of Al-Qaeda, detonated a time bomb in US Embassy, Manila, and caused death and
serious bodily injury to several persons, endangers the life of others, and causes extensive damage to
an US government facility. Al- Qaeda claimed responsibility and demanded that the U.S. government
should not to interfere with the affairs of the Muslim. This is terrorism since the purpose of Pedro is
to influence the US government by intimidation.

To constitute terrorism under RA No. 9372, murder must create a condition of fear and panic among
the populace in order to coerce the government to give in to an unlawful demand. In terrorism under
the old law, creating fear to the general public by committing murder, and intent to coerce the
government must concur. However, under RA No. 11479, the intention of the terrorist is either to
intimidate the general public, or to influence the government through intimidation. The concurrence
of intent to intimidate the public and intent to influence the government is not required in terrorism
under the new law.

Pedro detonated a time bomb in LRT, and caused death and serious bodily injury to several persons,
endangers the life of others, and causes extensive damage a critical infrastructure. This is not
terrorism under RA No. 9372 because there is no showing that Pedro detonated the bomb in order to
coerce the government to give in to an unlawful demand such secession of Mindanao from the
Philippines. However, this is terrorism under RA No. 11479 since by its nature and context, the
bombing intimidated the general public and created an atmosphere or spread a message of fear.

Destroying fundamental political, economic, or social structures - Committing a criminal act

described in Section 4 of RA No. 11479 such as acts intended to cause death to person for purpose of
seriously destabilize or destroy the fundamental political, economic, or social structures of the
country is terrorism.

Members of the CPP-NPA wage a civil war to overthrow the government, and replace it with
communist government. Since there is public and armed uprising to remove the territory of the
Philippines allegiance of the Filipino people to present government and its laws, they are liable for
rebellion. If members of the

CPP-NPA detonated time bomb in LRT for purpose of destroying the political and economic structure
of the country from democratic and capitalist government to dictatorial and communist government,
they are liable for terrorism.

Creating a public emergency or seriously undermine public safety - Release of dangerous substances
such a biological weapon that creates a public emergency or seriously undermine public safety is
terrorism.

Terrorism is committed regardless of stage of execution - Pedro, a member of Al-Qaeda, set a time
bomb in US Embassy, Manila, to explode after two hours. However, the authorities discovered the
bomb and defused it. Even though the stage of executing the criminal design to bomb the US
Embassy is merely attempted, the crime committed is terrorism.

Exclusionary proviso - Terrorism under RA No. 11479 shall not include advocacy, protest, dissent,
stoppage of work, industrial or mass action, and other similar exercises of civil and political rights,
which are not intended to cause death or serious physical harm to a person, to endanger a person's
life, or to create a serious risk to public safety.

Mass action which caused incidental destruction of properties and killing of police officers will not
make the participators liable for terrorism. However, if the organizers deliberately organized mass
action to cause death or serious bodily injury to any person, extensive damage or destruction to a
government or public facility, public place, or private property or critical infrastructure to influence
by intimidation the government, the crime committed is terrorism.

Non-mutually exclusive crimes - In Lagman vs. Medeldea, G.R. No. 231658, July 04, 2017, the
Supreme Court stated that there is nothing in Article 134 of RPC and RA No. 9372 which states that
rebellion and terrorism are mutually exclusive of each other or that they cannot co-exist together. RA
No. 9372 does not expressly or impliedly repeal Article 134 of the Code. And while rebellion is one of
the predicate crimes of terrorism, one cannot absorb the other as they have different elements.

TRAFFICKING IN PERSON – The elements of trafficking in person are as follows:

1. The act of recruitment, transportation, transfer or harboring, or receipt of persons with or
without the victim's consent or knowledge, within or across national borders;

2. The means used which include "threat or use of force, or other forms of coercion, abduction,
fraud, deception or abuse of power or of position, taking advantage of the vulnerability of the
person, or, the giving or receiving of payments or benefits to achieve the consent of a person having
control over another; this means as an element can be dispensed with when the victim is a minor;
and

3. The purpose of trafficking is exploitation which includes "exploitation or the prostitution of

others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the
removal or sale of organs. (People vs. De Dios, G.R. No. 234018, June 06, 2018; (Santiago vs. People,
G.R. No. 213760, July 01, 2019, Justice Leonen)

1. Acts of trafficking – a. Maintaning - If the accused is regularly offering the sexual service of
the child in exchange for money, the crime committed is not anymore child prostitution. Maintaining
or hiring the child as purpose of prostitution constitutes qualified trafficking in person because the
former took advantage of vulnerability of the latter as a child and as one who need money. Minority
is qualifying circumstance (People vs. Casio, G.R. No. 211465, December 03, 2014, Justice Leonen;
People vs. Hirang, G.R. No. 223528, January 11, 2017).

b. Transporting - Accompanying a child and offering her sexual services in exchange for money
constitutes child prostitution. The accused who offered the victim to the one who raped her is not
liable for rape as principal indispensable cooperation since bringing the victim to the rapist is not
indispensable to the commission of the crime of rape (People vs. Dulay, GR No. 193854, September
24, 2012). It is submitted that the accused in Dulay case, can be prosecuted for trafficking in person
instead of child prostitution.

Recruiting and transporting a child for sexual service for money constitutes qualified trafficking in
person. In People v. Aguirre, G.R. No. 219952, November 20, 2017, accused lured several minors into
prostitution to have sex with foreigners with the promise of financial benefit, the chance to use
shabu and to travel abroad. The girls were brought at an apartment and were instructed to primp
themselves to look good for the foreigners. Accused was convicted of qualified trafficking in persons
since the accused recruited and transported the minors for purposes of prostitution. The victim’s
consent is not a defense in qualified trafficking in person.

Accused recruited AAA, a minor, and transported to Saigon Disco for the purpose of engaging her to
perform illicit work, i.e., as a GRO and perform lewd acts thereat and with customers even outside
the establishment. She is liable for qualified trafficking in person. (People vs. Garcia, G.R. No. 240692,
July 15, 2020)

c. Recruitment - In Young vs. People, G.R. No. 213910, February 03, 2016, petitioners allegedly
recruited and hired the AAA Group and, consequently, maintained them under their employ in
Jaguar for the purpose of engaging in prostitution. Accused can be properly charged with trafficking
in person.

Recruiting without license a person, child or adult, to work as a prostitute abroad constitutes the
crime of trafficking in person and illegal recruitment. Syndicate is qualifying circumstance in both
crimes. Even if the accused is less than three, but the allegation and evidence show that there are at
least three traffickers and recruiters, syndicated can be appreciated as qualifying circumstance
(People vs. Lalli, G.R. No. 195419, October 12, 2011; People vs. Hashim, G.R. No. 194255, June 13,
2012).

2. By means of trafficking – a. Fraud and deception - The accused deceived victim by saying
that her work in Malaysia would be as restaurant entertainer, when in fact, she would be working as
a prostitute. This is trafficking in person. Fraud and deception are means to commit trafficking in
person. (People vs. Lalli, G.R. No. 195419, October 12, 2011)

b. Taking advantage of vulnerability - It is apparent from this case that no threat, force or coercion
was employed by accused in the trafficking of the victims. However, they took advantage of the
vulnerability of the victims to secure the consent of their parents. They are vulnerable in the sense
that they are underprivileged and it is apparent that they needed to earn money. Considering that
the victims came from poverty-stricken families, it renders the victims vulnerable to trafficking.
Trafficking in persons can still be committed even if the victim gives consent. (People vs. Leocadio,
G.R. No. 237697, July 15, 2020)

c. Minor victim - Acts of trafficking committed for exploitive purpose against a child, or when the
adoption is induced by any form of consideration, shall also be considered as ‘trafficking in persons’
even if they do not involve any of the means to commit trafficking.

Since the victims are minor, means to commit trafficking such as threat or use of force, coercion, or
fraud need not be established by evidence. Even without the use of coercive, abusive, or deceptive
means, a minor’s consent is not recognized by law, (People v. Aguirre, G.R. No. 219952, November
20, 2017) or shall not be considered as having been given out of his or her own free will. (People vs.
Ramirez, G.R. No. 217978, January 30, 2019, Justice Leonen)

3. Exploitive Purpose - The act of trafficking is committed for any of the following purposes: (a)
Sexual exploitation such as prostitution or pornography;

(b) Labor exploitation such forced labor or services, slavery, servitude; and (c) Organ exploitation
such as removal or sale of organs.

Section 3 of RA No. 9208 in defining trafficking in person used the phrase “for the purpose of
exploitation.” Hence, the third element of this crime is exploitive purpose. Recruiting, hiring or
transferring the victim through the required means such as taking advantage of her vulnerability for
purpose of exploitation such as prostitution consummates the crime of trafficking in person. Actual
exploitation is not necessary for purpose of consummation thereof.

Accused approached PO1 Nemenzo and offered him the sexual services of four girls, two of whom
were minors, for P2,400.00. The police operation had been the result of previous surveillance. Both
minor victims testified that this incident was not the first time that accused pimped them out to
customers. It was held that the crime of trafficking in person involving prostitution is considered
consummated even if no sexual intercourse (or no actual sexual exploitation) had taken place since
the mere transaction consummates the crime. (People vs. Ramirez, G.R. No. 217978, January 30,
2019, Justice Leonen)

The fact that there were no actual indecent shows that were performed by the victims, except for
BBB, is immaterial. It is not necessary that the victims have performed or are performing the act of
prostitution or sexual exploitation at the time when the perpetrators were apprehended. The
material fact in the crime charged is that the purpose of the perpetrators is to engage the victims in
the said act of prostitution or sexual exploitation. (People vs. Leocadio, G.R. No. 237697, July 15,
2020)
Labor exploitation - Accused deceived 5 complainants, who were mostly minors, for they are made to
believe that they will be working as house helpers in Cagayan De Oro City with an enticing salary of
P1,500.00 per month. She told them that they would be allowed to go home once a week. However,
the complainants were transported to Marawi City. The complainants would not have agreed or
would not have been allowed by their parents if accused would directly offer them work at Marawi
City. The accused deliberately fabricated a story to delude her victims and their parents. When
complainant asked for their salary, they were told that it had already been given to accused. This is
slavery. Accused was convicted of trafficking in person qualified by the circumstance of minority and
large scale. (People vs. Nangcas, G.R. No. 218806, June 13, 2018)

Accused and his minor son invited the latter's three (3) schoolmates who were also minors, namely
AAA, BBB, and CCC, to their house. It was then revealed that the purpose of the meeting was to
discuss plans of accused to commit robberies with the help of AAA, BBB, and CCC. Upon learning
about this, CCC expressed his desire to leave but accused got angry and punched him; thus, he was
forced to join the group. The children subsequently committed series of robberies against various
people. Accused was also the driver of their getaway tricycle. Accused is liable for qualified trafficking
in person. He recruited minors by taking advantage of their vulnerability as minors, particularly
through enticement, violence, and use of force and coercion for purpose of forced labor, or
involuntary servitude. Forced labor and slavery is defined as the extraction of work or services from
any person by means of enticement, violence, intimidation or threat, use of force or coercion.
(Arambullo vs. People, G.R. No. 241834, July 24, 2019)

Not valid defenses – The following are not valid defenses in trafficking in person:

1. Trafficking in person can be committed with or without the victim’s consent or knowledge.
Thus, consent of the victims, who are minors, to engage in prostitution is not a defense in trafficking
in persons involving recruitment and transportation of trafficked victims. (People v. Aguirre, G.R. No.
219952, November 20, 2017)

Victim's consent is rendered meaningless due to the coercive, abusive, or deceptive means employed
by perpetrators of human trafficking. Even without the use of coercive, abusive, or deceptive means,
a minor's consent is not given out of his or her own free will. (People vs. Bandojo, G.R. No. 234161,
October 17, 2018)

2. The fact that there was no person to whom accused endorsed or recruited his victims is of no
moments. Neither the presence of the trafficker's clients is required to support a finding of
trafficking. To be sure, the gravamen of the crime of trafficking is the act of recruiting or using a
fellow human being for sexual exploitation. (People vs. Estonilo, G.R. No. 248694, October 14, 2020)

3. Sexual intercourse with the victims is not required to support a finding of trafficking. To be
sure, the gravamen of the crime of trafficking is the act of recruiting or using a fellow human being
for sexual exploitation. (People vs. Estonilo, G.R. No. 248694, October 14, 2020)

4. The accused had already been involved in the illegal trafficking of women even prior to the
entrapment operation and arrest. The accused was not forced or induced to commit the crime. In
fact, accused readily agreed to procure girls for the poseur-buyers and in his active recruitment of
the victims. Thus, his defense of instigation has no merit. This is a valid entrapment. (People vs.
Amurao, G.R. No. 229514, July 28, 2020)

Qualifying circumstance of syndicate or large scale - Qualified trafficking in person is committed

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 3 or more persons conspiring or confederating with one
another. It is deemed committed in large scale if committed against 3 or more persons, individually
or as a group (People vs. Kelley, G.R. No. 243653, June 22, 2020)

There are as many crimes of trafficking in person as there are victims of trafficking. In People vs. XXX,
G.R. No. 235652, July 09, 2018, XXX and YYY were convicted of three counts of qualified trafficking in
persons for making their three biological children (minors) perform acts of cybersex in pornographic
websites for different foreigner customers in exchange of money or ordering them to dance naked in
front of the computer with internet connectivity while facilitating the webcam sessions and chatting
with a certain customer. XXX is convicted of another count of qualified trafficking in person for
transporting and providing her own minor biological child to a foreigner in Makati City for the
purpose of prostitution.

It is submitted however, that if the accused is charged with trafficking in person with the qualifying
circumstance of large scale involving three trafficking victims, he should be held liable of one count of
qualified trafficking in person.

Qualifying circumstance of minority – Minority cannot be appreciated as a qualifying circumstance

in trafficking in person if not alleged in the information. (People v. Aguirre, G.R. No. 219952,
November 20, 2017)

To appreciate the qualifying circumstance of minority of the victim in trafficking in person,

knowledge of the accused with regard to her minority is inconsequential (People vs. Bandojo, G.R.
No. 234161, October 17, 2018)

Promoting trafficking in person – The person, who knowingly leases or subleases, uses or allows to
be used any house, building or establishment for the purpose of promoting trafficking in persons is
liable for promoting trafficking in person (Section 5 of RA No. 9208). The pimp is liable for trafficking
in person (Section 4). The customer of the trafficked prostitute is liable for use of trafficked victim
(Section 11). The trafficked prostitute is exempt from criminal liability for the crime of prostitution
(Sections 17 and 32)

In People vs. Saxo, G.R. No. 227704, April 10, 2019, accused owned a house where its room was
offered for lease for every paying customer of the complainants, who engaged in sex for a fee.
Accused is aware of these prostitution activities since he cleaned the room after the complainant and
her customer finished using it. Moreover, he sold condoms to complainant's male customers before
using the room. The trial court trial court convicted him of qualified trafficking in person for
knowingly leasing his house for the purpose of promoting trafficking in persons under Section 5 of RA
No. 9208. The Supreme Court said that the trial court committed a serious error. The crime under
Section 5 of RA 9208 must be properly denominated as “acts that promote trafficking in persons,”
and not qualified trafficking in person.

The qualifying circumstance of minority under Section 6 of RA No. 9208 can be appreciated if the
crime is trafficking in person under Section 4. The circumstance of minority cannot qualify promoting
trafficking in person under Section 5. (People vs. Sayo, supra)

ILLEGAL RECRUITMENT - An employee may be held liable with his employer, if the former actively
and consciously participated in illegal recruitment. The employee cannot escape liability by claiming
that she was not aware that before working for her employer in the recruitment agency, she should
first be registered with the POEA. Illegal recruitment in large scale is malum prohibitum, not malum
in se. Good faith is not a defense (People vs. Valenciano, G.R. No. 180926, December 10, 2008).
The fact that no receipt was issued by appellant is not fatal to the prosecution's cause, more so in
this case where the respective testimonies of private complainants clearly narrated appellant's
involvement in illegal recruitment activities. (People vs. Imperio, G.R. No. 232623, October 05, 2020)

Illegal recruitment involving failure to deploy is different from illegal recruitment involving failure to
reimburse. An officers of licensed recruitment agency cannot be held liable for failure to deploy
complainants in the absence independent evidence from the Department of Labor and Employment
(DOLE) to establish the reason for non-deployment, such as the absence of a proper job order.
However, they can still be held liable for failure to make reimbursement. Section 6(m) of RA 8042
criminalizes the failure to reimburse documentation and processing expenses incurred by the
applicant in case of non-deployment, and not the failure to deploy, which is covered by a different
provision. The law thus makes it incumbent upon recruitment agencies, under pain of criminal
sanction, to promptly reimburse applicants when they are not deployed without their fault. (People
vs. Espiritu, G.R. No. 226140, February 26, 2020)

DANGEROUS DRUGS – The sheer volume of the seized drugs consisting of almost eight (8) kilograms
renders the defense of frame-up difficult to believe; the large quantity of drugs seized reduces, if not
eradicates, the possibility of planting or tampering of evidence. (People vs. Wai Tang, G.R. No.
238517, November 27, 2019)

Transportation - Since the crime of transportation of dangerous drugs is malum prohibitum, it is

inconsequential to prove that the illegal drugs were delivered or transported to another person. The
only thing that had to be proven was the movement of the illegal drugs from one place to another.
(People vs. Amago, G.R. No. 227739, January 15, 2020)

Under RA No. 9165, transportation of dangerous drugs can be committed regardless of the quantity.
However, if the quantity of the drugs is not considerable or commercial, the offender, who is
transporting drugs, can be charged and convicted of possession of dangerous drugs. In Asuncion v.
CA, G.R. No. 125959, February 1, 1999, the accused was driving a car with 0.1216 gram of shabu. In
Sales v. People, G.R. No. 191023, February 6, 2013, the accused was caught in possession of 0.23
gram of dried Marijuana at the departure area of NAIA. In De Villa vs. People, G.R. No. 224039,
September 11, 2019, the accused was driving a motorcycle with 0.12 gram of shabu. The quantities
of drugs in Asuncion case, Sales case and De Villa case are not considerable or commercial, which
indicate that they possessed the same for consumption purpose. Hence, they were charged with and
convicted of possession of dangerous drug and not the graver crime of transportation of dangerous
drugs.

Importation - Accused were caught by police authorities on board a speedboat carrying shabu. Since
it was not proven that the drugs came from China or foreign country they were convicted of
possession of dangerous drugs, which is necessarily included in the charge of importation (People vs.
Chan Liu,

G.R. No. 189272, January 21, 2015). The accused can also be held liable of transportation of
dangerous drugs since the place of origin is inconsequential in this crime.

Sale - Even if the police transacted for the sale of shabu, the fact that the seized drugs are ephedrine,
will not warrant a reversal of the finding of guilt of the accused. In any case, the charge in the
information was clearly for violation of Section 5 of R.A. No. 9165. It is immaterial whether the
allegation was for shabu or ephedrine, since both are dangerous drugs. Further, the purpose of the
laboratory examination is to confirm that the seized items are indeed dangerous drugs. The police
officers cannot be expected to conclude with certainty whether the suspected dangerous drugs are
shabu or ephedrine just by visual inspection. What matters is that the prosecution was able to prove
that the seized items are indeed dangerous drugs and are the ones presented in court. (People vs.
Ming Tat, G.R. No. 246577, July 13, 2020)

Attempted sale or transportation - Poseur-buyer showed shabu for sale to poseur buyer. The sale
was aborted when the police officers immediately placed accused under arrest. The crime committed
is attempted sale (People vs. Figueroa, G.R. No. 186141, April 11, 2012).

Accused intended to transport dangerous drugs to Malaysia through the use of drug couriers in the
person of the confidential informant and IO2 Alarde. Confidential informant and IO2 Alarde were
summoned to be given instructions regarding the transportation of certain luggage to Malaysia. The
confidential informant and IO2 Alarde were brought by accused to a Hostel, where the prohibit drugs
were discovered. At that point, the crime of transportation of prohibited drugs is already at its
attempted stage. Even in the absence of actual conveyance, an attempt to transport prohibited drugs
is meted the same penalty prescribed for the commission thereof under Section 26 of R.A. 9165.
(People vs. Runana, G.R. No. 229055, July 15, 2020)

The accused cannot be convicted of attempted transportation of dangerous drugs where he was
caught in possession thereon inside his car, which is not in transit. The theory of the prosecution that
there is clear intent to transport the drug is speculative. (San Juan v. People, G.R. No. 177191, May
30, 2011) But intent to transport illegal drugs is presumed whenever a huge volume thereof is found
in the possession of the accused until the contrary is proved. Here, five hundred fifty-two (552) grams
or half kilo of shabu is by no means a minuscule amount indicating as well intent of the accused to
deliver and transport them in violation of Section 5, Article II of RA 9165. (People vs. Macaspac, G.R.
No. 246165, November 28, 2019)

In People v. Burton, G.R. No. 114396, February 19, 1997, the accused came from a hotel in
Parañaque, where he stayed before he checked in at the NAIA and was bound for Sydney, Australia.
At the departure area of the airport, authorities discovered dangerous drugs in the two pieces of
luggage of the accused. It was held that it is apparent that he wanted to bring the prohibited drug
from Parañaque to Sydney. However, because he was not able to pursue his trip, he should be
considered only to have attempted to transport the prohibited drug to Sydney.

In People v. Dimaano, G.R. No. 174481, February 10, 2016, Justice Leonen, the accused, who was
caught in possession of dangerous drugs at the departure area of Manila Domestic Airport was also
convicted of attempted transportation of dangerous drug. However, in People v. Jones, G.R. No.
115581, August 29, 1997, the accused was also caught in possession of dangerous drugs at the
departure area of NAIA, and yet, he was convicted of consummated transportation of dangerous
drugs. At any rate, the penalty prescribed for transportation of dangerous drugs is
the same as that for attempted transportation of dangerous drugs.

Drug den - Before a person may be convicted of visiting drug den, it must be shown that he or she
knew that the place visited was a drug den, and still visited the place despite this knowledge. True,
the drug test results sufficiently proved that accused had used drugs some time before their arrest.
However, the positive result of the drug test cannot be used as a basis to assume that accused used
drugs at the drug den or that they were aware of the nature of the suspected drug den before
visiting it. Accused were not in possession of drugs. Nobody was found in the act of using, selling or
buying illegal drugs, nor packaging nor hiding nor transporting the same. There is no evidence, which
would tend to show that the accused were familiar with the nature of the place as a drug den.
Accused were acquitted. (Coronel vs. People, G.R. No. 214536, March 13, 2017, Justice Leonen)
Protector or coddler – P/Supt. Borromeo's participation was not limited to merely protecting the
violators nor facilitating their escape. His co-conspirators regularly reported to and updated him of
the operations in the shabu laboratory. He monitored all the illegal activities through Dante, who
acted under his control and carried out specific instructions coming from him. These acts sufficiently
established his pivotal role in the conspiracy. Thus, there was no logical reason for the CA to
downgrade his liability from that of a co-conspirator to a mere coddler or protector. Although the
prosecution, at the time of the filing of the Information, used the words "protector" or "coddler" to
specify Borromeo's participation in the conspiracy, the terminology is immaterial there being a clear
finding of conspiracy. The use of the words "protector" or "coddler" should not be taken to mean
that his liability as co-conspirator is automatically negated or reduced. (People vs. CA, G.R. No.
227899, July 10, 2019)

Possession of drugs – Possession of different kinds of dangerous drugs in a single occasion

constitutes a single offense of possession of dangerous drugs (David vs. People, G.R. No. 181861,
October 17, 2011).

Section 13 of RA 9165 prescribes a higher penalty if a person is found possessing any dangerous drug
during a party, or at a social gathering or meeting, or in the proximate company of at least two (2)
persons. To qualify the crime, the law does not require that possession is intended for the purpose of
using illegal drugs or that the accused is having a pot session with two persons. In fact, under
Implementing Rules and Regulations (IRR) of RA 9165, the phrase "company of at least 2 persons"
was defined to "mean the accused plus at least two (2) others, who may or may not be in
possession of any dangerous drug." (Plan, Jr. vs. People, G.R. No. 247589, August 24, 2020)

The purpose of Section 13 is to deter the proliferation of prohibited drugs to other persons.
Possession of dangerous drugs is a crime in itself; but when the possessor is found in a situation
where there is a tendency or opportunity to proliferate drugs to other persons, either through direct
peddling or even some indirect influence, the gravity of the crime is exacerbated. In addition, when
one possesses dangerous drugs, there is always a chance that the possessor uses and consequently,
becomes "under the influence." Thus, in the circumstances stated in Section 13, the possessor does
not only become an imminent threat to his own safety and well-being, but also to other people
within his close proximity; hence, the stiffer penalties. (Plan, Jr. vs. People, G.R. No. 247589, August
24, 2020)

Use of dangerous drugs – Use of dangerous drugs is committed by a person apprehended or

arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test. Where
the person tested is also found to have in his possession, he shall be charged of possession of
dangerous drugs and not use of dangerous drugs (Section 15 of RA No. 9165).

Where residue of dangerous drugs is found and there is a positive confirmatory test result, the
accused should be charged with use rather than possession of dangerous drugs. This would be in
keeping with the intent of the law to rehabilitate first time offenders of drug use and provide them
with an opportunity to recover for a second chance at life (People vs. Matinez, G.R. No. 191366,
December 13, 2010).

To be held liable for use of dangerous drugs, two distinct drug tests are required: a screening test
and a confirmatory test. A positive screening test must be confirmed for it to be valid in a court of
law. The test conducted on the urine specimen of the accused was a Thin Layer Chromatography or
TLC - a screening test. When the urine sample recovered from accused yielded a positive result, the
specimen should have been subjected to a second test - the confirmatory test. It is the second or
further analytical procedure to more accurately determine the presence of dangerous drugs in the
specimen. The records are silent on any reference to a second, more specific, and examination on the
urine sample. Accused was acquitted. (People vs. Lopez, G.R. No. 247974, July 13, 2020)

Positive confirmatory test is an element of use of dangerous drugs. However, the absence of such
test cannot be raised as an issue for the first time on appeal (Ambre vs. People, G.R. No. 191532.
August 15, 2012).

Coordination with PDEA - Section 86 of RA No. 9165, which declares PDEA shall be the "lead agency"
in the investigations and prosecutions of drug- related cases, is more of an administrative provision.
It is silent as to the consequences of failure on the part of the law enforcers to seek the authority of
the PDEA prior to conducting a buy-bust operation (People vs. Berdadero, G.R. No. 179710 June 29,
2010). Lack of coordination with the PDEA will not invalidate a buy-bust operation. Such coordination
is not an indispensable requirement in buy-bust operations (People vs. Mendosa, G.R. No. 189327,
February 29, 2012).

Chain of custody - The chain of custody refers to recorded authorized movements and custody of
confiscated dangerous drugs. It involves testimony on every link in the chain - from the confiscation
of the illegal drugs to its receipt in the forensic laboratory up to its presentation in court. It is
necessary that every person who touched the seized item describe how and from whom he or she
received it; where and what happened to it while in the witness’ possession; its condition when
received and at the time it was delivered to the next link in the chain. Generally, there are four links
in said chain of custody: 1) the seizure and marking, if practicable, of the illegal drug confiscated from
the accused by the apprehending officer; 2) the turnover of the seized drug by the apprehending
officer to the investigating officer; 3) the turnover by the investigating officer of said item to the
forensic chemist for examination; and, 4) the turnover and submission thereof from forensic chemist
to the court (People vs. Gajo, G.R. No. 217026, January 22, 2018).

Inventory and photography – Under Section 21 of RA No. 9165, the apprehending team having initial
custody and control of the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or the person/s from whom such
items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to
sign the copies of the inventory and be given a copy thereof.

Under Section 21 of RA No. 9165 as amended by RA No. 10640, the inventory and photography of
the seized items must be made in the presence of “at least three persons”, to wit: (1) the accused or
the person from whom such items were confiscated or his representative or counsel; (2) any elected
public official, and (3) the media or representatives of National Prosecution Service. RA No. 9165 as
amended uses the disjunctive “or” in the phrase “the National Prosecution elected public official
Service or the media.” Thus, a representative from the media and a representative from the National
Prosecution Service are now alternatives to each other (People vs. Que, G.R. No. 212994, January 31,
2018; People vs. Baluyot, G.R. No. 243390, and October 05, 2020)

The original version of Section 21 of RA No. 9165 did not provide the effect of non-compliance of
the rule on inventory and photography of the confiscated item. Section 21 of RA No. 9165 as
amended by Republic Act No. 10640, now includes a proviso that sanctions noncompliance under
"justifiable grounds": Provided, finally, That noncompliance of these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved
by the apprehending officer/team, shall not render void and invalid such seizures and custody over
said items (People vs. Que, G.R. No. 212994, January 31, 2018). The justifiable ground for non-
compliance must be proven as a fact, because the Court cannot presume what these grounds are or
that they even exist. Moreover, for the above-saving clause to apply, the prosecution must explain
the reasons behind the procedural lapses, and that the integrity and evidentiary value of the seized
evidence had nonetheless been preserved (People vs. Paz, G.R. No. 229512, January 31, 2018).

The following are justifiable grounds for failure to comply with the three- witnesses rule:

1. The attendance of elective official and media or NPS representative was impossible because
the place of arrest was a remote area;

2. The safety of these required witnesses during the inventory and photograph of the seized
drugs was threatened by an immediate retaliatory action of the accused or any person acting for and
in his behalf;

3. The elected official themselves were involved in the punishable acts sought to be
apprehended;

4. The time constraints and urgency of the anti-drug operations, which often rely on tips of
confidential assets, prevented the law enforcers from obtaining the presence of the required
witnesses even before the offenders could escape; or

5. Earnest efforts to secure the presence of these required witnesses within the period required
under Article 125 of RPC prove futile through no fault of the arresting officers, who face the threat of
being charged with arbitrary detention. (People vs. Lim, G.R. No. 231989, September 4, 2018)

The police were able to explain the failure to conduct an inventory and take photographs of the
seized items. This is because of the intervening fact that one Illuminado Acosta was shot at the time
of the buy-bust operation (People vs. Flor, G.R. No. 216017, January 19, 2018).

In People vs. Lim, supra, an agent testified that no members of the media and barangay officials
arrived at the crime scene because it was late at night and it was raining, making it unsafe for them
to wait at the house of the accused. Another agent similarly declared that the inventory was made in
the PDEA office considering that it was late in the evening and there were no available media
representative and barangay officials despite their effort to contact them. He admitted that there are
times when they do not inform the barangay officials prior to their operation as they might leak the
confidential information. These justifications are unacceptable as there was no genuine and sufficient
attempt to comply with the law. The prosecution likewise failed to explain why they did not secure
the presence of a representative from the DOJ. Accused was acquitted. Justice Leonen concurred
with the acquittal of the accused.

In People v. Lim, supra, the Supreme Court, En Banc, expressly required that the police officers must
in the sworn statements state their compliance with the requirements of Section 21 of R.A. No. 9165
or the justification for non- compliance thereof and steps taken to preserve the integrity of the
confiscated dangerous drugs; otherwise, the investigating fiscal must not immediately file the case
before the court. Instead, he must refer the case for further preliminary investigation. If the
investigating fiscal filed the case despite such absence, the court may exercise its discretion to either
refuse to issue a commitment order or warrant of arrest or dismiss the case outright for lack of
probable cause.

The policeman failed to comply with the rule on three-witnesses and did not offer justifiable grounds
for such non-compliance. However, the issue of non– compliance with Section 21 of R.A. No. 9165
cannot be raised for the first time on appeal. Hence, the defense of the accused should be rejected
(People v. Badilla, G.R. No. 218578, August 31, 2016)

When the quantity of the confiscated substance is miniscule (e.g. 0.03 grams of shabu), the
requirements of Section 21 of Republic Act No. 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, must be strictly complied with. (People vs. Saragena, G.R. No. 210677,
August 23, 2017, Justice Leonen)

Place where inventory and photography shall be conducted - Section

21 of RA No. 9165 as amended by RA No. 10640 includes a specification of locations where the
physical inventory and taking of photographs must be conducted. The amended section uses the
mandatory verb "shall." If there is a search warrant, the physical inventory and photograph shall be
conducted at the place where the warrant is served. In case of warrantless seizures, the physical
inventory and photograph shall be conducted at the nearest police station or at the nearest office of
the apprehending officer/team, whichever is practicable (People vs. Que, G.R. No. 212994, January
31, 2018).

Plea bargaining – Plea bargaining in criminal cases is a process whereby the accused and the
prosecution work out a mutually satisfactory disposition of the case subject to court approval. It
usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the
counts of a multi-count indictment in return for a lighter sentence than that for the graver charge.
The basic requisites of plea bargaining are: (1) consent of the offended party; (2) consent of the
prosecutor; (3) plea of guilty to a lesser offense which is necessarily included in the offense charged;
and (4) approval of the court. (Fernandez vs. People, G.R. No. 224708, October 02, 2019)

Section 23 of RA No. 9165, any person charged under any crime involving dangerous drugs
regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.
However, this provision was declared as unconstitutional for contrary to the rule making authority of
the Supreme Court (Estipona, Jr. vs. Lobrigo, G.R. No. 226679, August 15, 2017). Following this
pronouncement, the Supreme Court issued A.M. No. 18-03-16-SC providing for a plea-bargaining
framework in drugs cases, while the Secretary of Justice issued DOJ Circular No. 27 on plea
bargaining. The Supreme Court guidelines on acceptable plea bargaining are different from those
provided by the DOJ.

Department of Justice Circular No. 27 does not violate the rule-making power of this Court. A.M. No.
18-03-16-SC and Office of the Court Administrator Circular No. 90-2018 are not part of the Rules of
Court. They are, like Department of Justice Circular No. 27, internal guidelines for plea bargaining in
drug offenses. Mere conflicting provisions among these issuances will not necessarily render the
executive issuance unconstitutional. A prosecutor's duty is to prosecute the proper offense based on
the sufficiency of the evidence. Consent to a plea of guilty to a lower offense is solely within
prosecutorial discretion. Courts do not have the discretion to mandate what offense the prosecution
should prosecute. (Concurring opinion of Justice Leonen in Sayre vs. Xenos, G.R. Nos. 244413 &
244415-16, February 18, 2020)

Plea bargaining is also called as a plea-bargaining agreement because it is actually an agreement

between the accused, the offended party, and the public prosecutor where the former will be
allowed to enter a plea to a lesser offense. In a victimless crime or where the offended party failed to
appear despite notice, plea bargaining agreement can be entered into between the accused and the
public prosecutor.
The court is not a party to a plea-bargaining agreement. Same as in a compromise agreement in a
civil case, the function of the court is to approve or to reject a plea-bargaining agreement. Without
conformity of the public prosecutor to a plea bargaining involving a victimless crime such as sale of
dangerous drugs, there is technically no plea-bargaining agreement that the court can approve. The
court cannot approve a unilateral plea bargaining, or one made by the accused without consent of
the fiscal. The word “bargaining” presupposes that there are at least two persons negotiating on the
terms of a transaction. Obviously, a single person cannot bargain or negotiate with himself. In fact,
Section 2, Rule 116 of the Rules of Criminal Procedure requires the conformity of the public
prosecutor to a plea bargaining.

In People vs. Reafor, G.R. No. 247575, November 16, 2020, the Supreme Court ruled: The RTC gravely
abused its discretion in granting respondent's motion to plea bargain notwithstanding the
prosecution's opposition to the same which is grounded on DOJ Circular No. 27. Effectively,
respondent's plea of guilty to a lesser offense to which he was convicted of was made without the
consent of the prosecution. Since respondent's plea of guilt and subsequent conviction for a lesser
offense clearly lack one of the requisites of a valid plea bargain, the plea bargaining is void.
Resultantly, the judgment rendered by the RTC which was based on a void plea bargaining is also
void ab initio and cannot be considered to have attained finality for the simple reason that a void
judgment has no legality from its inception.

RA No. 3019 – Corruption is an independent crime. Section 3 of R.A. No. 3019 reads: “In addition to
acts or omissions of public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer.” It is clear then that one may be charged with violation of R.A.
No. 3019 in addition to a felony under RPC for the same act. (Ramiscal, Jr. v. Sandiganbayan, G.R.
Nos. 169727–28, August 18, 2006) Thus, the offender in addition to violation of Section 3 of R.A. No.
3019 can be held liable for falsification of document by public official (Suero v. People, G.R. No.
156408, January 31, 2005); or malversation through falsification of document (People vs. Pajaro, G.R.
Nos. 167860–65, June 17, 2008) or failure to render an accounting. (Lumauig v. People, G.R. No.
166680, July 7, 2014); or plunder (See: Senator Revilla vs. Office of the Ombudsman, G.R. Nos.
212427-28, December 6, 2016)

SECTION 3 (C) - Section 3(c) of R.A. No. 3019 is committed by a public officer who shall directly or
indirectly request or receive any gift, present or other pecuniary or material benefit, for himself or
for another, from any person for whom the public officer, in any manner or capacity, has secured or
obtained, or will secure or obtain, any Government permit or license, in consideration for the help
given or to be given.

Under the last paragraph of Section 3, the person giving the gift, present, share, percentage or
benefit in Section 3(c) shall, together with the offending public officer, be punished.

In Lucman vs. People, G.R. No. 238815, March 18, 2019, DENR officer demanded P2,500,000.00 and
actually received P1,500,000.00 from private complainants in consideration of the grant of their
applications for free patents is liable under Section 3 (c).

SECTION 3 (D) – For one to be found guilty under Section 3 (d) of RA No. 3019, the following
elements must be present: (a) the accused is a public officer; (b) he or she accepted or has a member
of his or her family who accepted employment in a private enterprise; and (c) such private enterprise
has a pending official business with the public officer during the pendency of official business or
within one year from its termination.
Wife of accused, a TESDA officer, accepted employment in RACE, Inc., a private enterprise, which has
a pending official business with TESDA. Accused in his official capacity approved TESDA accreditation
of RACE. Accused in conspiracy with his wife, is liable for corruption under Section 3 (d) of RA No.
3019. Because of conspiracy, his wife is also liable. Moreover, under Section 9 (a), private person
committing any of the unlawful acts under this law shall also be punished. (Villanueva vs. People, G.R.
No. 237864, July 08, 2020)

The fact that RACE is a non-stock and non-profit educational association is immaterial. Regardless if
the enterprise is for profit or not, stock or non-stock, the law does not distinguish. It is an elementary
rule in statutory construction that: where the law does not distinguish, the courts should not
distinguish. (Villanueva vs. People, supra)

Violation of Section 3 (d) of RA 3019 is considered malum prohibitum. Mere acceptance by co-
accused, a family member, of employment with RACE renders accused liable under the law.
(Villanueva vs. People, supra)

SECTION 3 (E) - The following are the essential elements for violation of Section 3 (e) of RA 3019: (1)
The accused must be a public officer discharging administrative, judicial or official functions; (2) He
must have acted with manifest partiality, evident bad faith or inexcusable negligence; and (3) That
his action caused any undue injury to any party, including the government, or giving any private party
unwarranted benefits, advantage or preference in the discharge of his functions. (Office of the
Ombudsman vs. Prudente, G.R. No. 201830, November 10, 2015; PCGG vs. Gutierrez, G.R. No.
194159, October 21, 2015)

Public bidding - A mayor, who purchased medical supplies, without public bidding, is liable for
violation of Section 3 (e) of RA No. 3019 for giving unwarranted preference and benefit to the seller.
(Cabrera vs. People, G.R. Nos. 191611-14, July 29, 2019; People vs. Austria, G.R. 243897, June 08,
2020)

Permit to construct - Accused, an Administrator of Intramuros Administration, acted with gross

inexcusable negligence when he knowingly allowed OCDC to commence construction on the
Intramuros Walls without the required permits or clearances. By his actions, he gave unwarranted
benefits to a private party, i.e., OCDC, to the detriment of the public insofar as the preservation and
development plans for Intramuros are concerned. He is liable for violation of Section 3 (e) of RA No.
3019 (Ferrer vs. People, G.R. No. 240209, June 10, 2019)

Notice to proceed - Accused gave unwarranted benefits and advantage to several contractors by
allowing them to deploy their equipment ahead of the scheduled public bidding. Under law, a public
contract shall be awarded to the lowest prequalified bidder. The successful bidder may be allowed to
commence work only upon receipt of a Notice to Proceed. They are liable for violation of Section 3
(e) of RA No. 3019. (Abubakar vs. People, G.R. No. 202408, June 27, 2018, Justice Leonen)

Disbursement of fund for unauthorized travel - Accused, a Mayor of Municipality of Taal, travelled to
Manila, without securing permission from Governor prior to his departure. As Mayor, he approved
disbursement of funds representing reimbursement for travel expenses. When audit was conducted,
he obtained travel approval from the Governor. A travel is unauthorized because the accused did not
obtain a written permission from the governor prior to his departure as required by law. Subsequent
approval of the travel by the Governor will not validate the travel. Unauthorized travel is not a
violation of Section 3 (e) of RA No. 3019. But approving disbursement of public fund for
reimbursement of expenses for unauthorized travel violates this provision since it caused undue
injury to Municipality of Taal through bad faith. (Cabrera vs. People, G.R. Nos. 191611-14, July 29,
2019)

Donating in good faith - It cannot be denied that the transfer of the vehicles to SFWD was made to
ensure the success of the implementation of the waterworks projects in the province. The Deed of
Donation expressly provided that the subject vehicles shall be used for the said purpose. There is no
showing that the accused acted in bad faith in donating the vehicles. Accused was acquitted of
violation of RA No. 3019 (Bustillo vs. People, G.R. No. 160718 May 12, 2010).

Erroneous interpretation of the law - Five percent (5%) of the total PhilHealth honoraria was
allocated to the non - health professionals OR staff of the PCB Provider. As to who these non-health
or professionals mentioned, they were not specifically identified. The rule does not expressly indicate
whether they need be part of the official roll of employees of the Municipal Health Office. Non-
health professionals include the rank and file employees or administrative staff of the Municipal
Health Office who are not among the front liners providing access to health care. It also covers
volunteers and community members of health teams. This led accused to honestly believed, albeit
mistakenly, that the office of the municipal mayor which exercises control and supervision over the
Municipal Health Office and its personnel, may likewise be covered by the term "non-health
professional." Consequently, he acted in good faith when he received the P17,512.50 honorarium,
anchored as it was on the honest belief that he was legally entitled to the benefit. Otherwise stated,
accused did not act in bad faith when he mistakenly interpreted Section V (G) of PhilHealth Circular
No. 010 s. 2012. Erroneous interpretation of a provision of law, absent any showing of some
dishonest or wrongful purpose, does not constitute and does not necessarily amount to bad faith.
(People vs. Bacaltos, G.R. No. 248701, July 28, 2020)

Under Section 138 of Local Government Code, permit to extract sand, gravel and other quarry
resources shall be issued exclusively by the provincial governor. However, under Section 444 of the
same, a municipal mayor has a general authority to issue licenses and permits. Believing that
applicability of Section 444, the accused, a municipal mayor issued extraction permits. He was
charged of violation of Section 3 (e) of RA No. 3019. According to Justice Leonen in his Dissenting
Opinion, the brazen act of granting permits without any basis in law gives rise to a presumption of
bad faith. However, the Supreme Court acquitted the accused. From the tenor of his letter to
provincial officers, accused was very emphatic in his belief and reasoning, albeit mistakenly, that,
under the Local Government Code, he as municipal mayor has authority to issue the permits.
Although he committed a mistake in interpreting the law, such mistake is not tantamount to evident
bad faith, manifest partiality or gross inexcusable negligence under Section 3(e) of RA 3019. (Villarosa
vs. People, G.R. Nos. 233155- 63, June 23, 2020)

Demolition without due process of law - In Cuerpo vs. People, G.R. No. 203382, September 18, 2019,
members of Samahan occupied lands in Quezon City as squatters. In an ejectment case, they agreed
to voluntarily vacate the properties. They planned to relocate in Rodriguez, Rizal, but the accused,
municipal mayor, refused to allow squatters to relocate therein. Samahan bought a property therein
but Office of the Municipal Engineer refuse to process the application for building permit. Because of
the writ of demolition issued by the Court of Quezon City, members of the Samahan were forced
moved to their purchased lot and built temporary shelters made of lumber and tarpaulin despite the
lack of building. Accused caused the demolition the makeshift homes and took away lumber,
tarpaulin, plywood, and appliances. Accused is liable for violation of Section 3 (e) of RA No. 3019 for
causing undue injury to the members of Samahan through manifest partiality and evidence bad faith.
Under the Constitution, urban or rural poor dwellers shall not be evicted nor their dwellings
demolished, except in accordance with law and a just and humane manner. Members of Samahan
are urban poor dwellers, and yet, they were evicted in disregard of the law.

Under RA No. 7279, summary eviction and demolition are also allowed in cases pertaining to
identified professional squatters, squatting syndicates and new squatter families. "Professional
squatters'" refer to individuals or groups who occupy lands without the express consent of the
landowner and who have sufficient income for legitimate housing. They are persons who have
previously been awarded homelots or housing units by the Government but who sold, leased or
transferred the same to settle illegally in the same place or in another urban area, and non-bona fide
occupants and intruders of lands reserved for socialized housing. The term shall not apply to
individuals or groups who simply rent land and housing from professional squatters or squatting
syndicates. "Squatting syndicates", on the other hand, refers to groups of persons engaged in the
business of squatter housing for profit or gain. While "new squatter" refers to individual groups who
occupy land without the express consent of the landowner after March 28, 1992. Members of
Samahan are not squatters because the construction of makeshift homes was made on their own
property.

Under RA No. 7279, eviction or demolition, however, may be allowed under the following situations:
(a) When persons or entities occupy danger areas such as esteros, railroad tracks, and other public
places such as sidewalks, and parks; (b) When government infrastructure projects with available
funding are about to be implemented; or (c) When there is a court order for eviction and demolition.
None of these circumstances is obtaining in this case.

Granting that the shanties of members of Samahan were constructed without the necessary building
or development permits, this fact does not automatically necessitate the summary demolition.
Property rights are involved, thereby needing notices and opportunity to be heard as provided for in
the constitutionally guaranteed right of due process. Without compliance with the laws allowing for
eviction and demolition, accused was not justified in employing procedural sidesteps in displacing
them from their property by a mere Memorandum ordering for summary demolition issued by
accused. Accused should have undergone the appropriate proceeding as set out in the law.

Gross inexcusable negligence - In Reyes vs. People, G.R. No. 237172, September 18, 2019 (Justice
Leonen), accused, a governor, was charged of violation of Section 3 (e) of RA No. 3019 for renewing
the small-scale mine permit of Olympic Mines. Since the renewal of permit was not exclusively
granted to Olympic Mines, manifest partiality as an element of this crime is not present. There is no
evident bad faith since the law existing at the time did not expressly prohibit the renewal of small-
scale mining permits before their expiration. However, accused committed gross inexcusable
negligence when he approved the permit considering that Olympic Mines violated the terms and
conditions of old permit. Accused, as the local chief executive, had the duty to act within the best
interests of his constituents and to safeguard the environment's natural resources. Olympic Mines
disregard the dry metric ton threshold set by the law. This law ensures that small scale mining
activities will not result in environmental damage. His gross inexcusable negligence, thus, caused
undue injury to Palawan, as it exposed the province to various environmental threats resulting from
irresponsible mining.

Arias principle -In Arias v. Sandiganbayan, G.R. Nos. 81563 and 82512, December 19, 1989, the
property bought by the City is overpriced. When the accused was appointed as treasurer, the sale of
the property had already been consummated. Accused was charged with violation of Section 3(e) of
R.A. No. 3019 for causing damage to the government through manifest partiality and evident bad
faith. The only evidence presented by the prosecution is his signature on the voucher. He was
acquitted. Heads of offices can rely to a reasonable extent on their subordinates on preparation of
bids, purchase of supplies, or negotiations. Any executive head agencies or commissions can attest to
the volume of papers that must be signed. Thus, executive head cannot be convicted on the sole
basis of signature or approval appearing on a voucher. To sustain a conspiracy charge and conviction,
evidence must be presented other than her signature on the voucher.

The principle in the Arias case is not applicable in the following cases:

a. If other than the accused’s signature on the voucher, circumstances show evident bad
faith, or manifest partiality such as: (a) Where the accused has foreknowledge of existing anomaly –
e.g., mayor signed the inspection report and the disbursement voucher despite the fact that he had
foreknowledge that the materials delivered by Guadines have already been confiscated by the DENR
(Escara v. People, G.R. No. 164921, July 8, 2005); or (b) where accused approved the voucher without
indication of the retention money required by law, and he even inspected the construction site of
hospital boat being constructed, in which he should have noticed the financial weakness of the
contractor and the defective works (Rivera v. People, G.R. No. 156577, December 3, 2014);

b. If other than the accused’s signature on the voucher, circumstances show gross inexcusable
negligence such as where there is deviation from ordinary procedure, which necessitate further
investigation – e.g., mayor issued and encashed municipal checks despite the facts that the
disbursement vouchers were in the name of Kelly Lumber but the checks were payable to another
person and not to Kelly Lumber (Cruz v. The Hon. Sandiganbayan, G.R. No. 134493, August 16, 2005);

In Lihaylihay vs. People, G.R. No. 191219, July 31, 2013, the accused in his capacity as Chairman of
the Inspection and Acceptance Committee, signed the 16 certificates of acceptance, inventory, and
delivery of articles despite its incompleteness or lack of material dates, while co-accused certified to
the correctness of the Inspection Report Forms even if no such deliveries were made. Since there are
reasons for the heads of offices to further examine the documents in question, accused cannot seek
refuge by invoking the Arias doctrine.

The Arias doctrine cannot exonerate accused from criminal liability because there were
circumstances that should have prompted them to make further inquiries on the transactions subject
of this case e.g. the irregular mobilization of contractors prior to the scheduled public bidding, and
contract which contains a patently illegal stipulation and advance payment without appropriate
documents such as purchase orders and delivery receipts to support this disbursement. (Abubakar
vs. People, G.R. No. 202408, June 27, 2018, Justice Leonen)

c. If the public officer acting in his capacity as head of office has not relied on his subordinates
but on officers of equal rank such as heads of the Office of the City Treasurer and, the Office of the
City Accountant in approving the cash advances in the amount of P18 million to paymaster despite of
the failure to liquidate previous cash advances (Jaca v. People, G.R. No. 166967, January 28, 2013);
and

d. If the documents involving the release of funds are not so voluminous so as to preclude
him from studying each one carefully. (Santillano v. People, G.R. Nos. 175045–46, March 3, 2010)

Malversation can be committed intentionally or through dolo. Hence, the Arias principle cannot be
applied as a defense in a case involving malversation if there is evidence of negligence on the part of
the accountable officer.
Where there are circumstances that should have alerted heads of offices to exercise more diligence
in the performance of their duties, they cannot escape liability by claiming that they relied on good
faith on the submissions of their subordinates. There were discrepancies in the voucher and the
check, which should have prodded. The governor, treasurer, management and audit analyst to
examine the supporting documents for the fund disbursement. Thus, Arias is not applicable. They are
liable of malversation through negligence. (Escobar vs. People, G.R. No. 205576, November 20,
2017, Justice Leonen)

Actual damage - In causing undue injury to the government or any party under Section 3 (e) of RA
No. 3019, offended party must sustain actual loss or damage, which must exist as a fact and cannot
be based on speculations or conjectures. The loss or damage need not be proven with actual
certainty. However, there must be some reasonable basis by which the court, can measure it. Aside
from this, the loss or damage must be substantial. It must be more than necessary, excessive,
improper or illegal. In giving unwarranted benefits, advantage, or preference to a private party, proof
of the extent or quantum of damage is not thus essential. It is sufficient that the accused has given
unjustified favor or benefit to another. (Cabrera vs. People, G.R. Nos. 191611-14, July 29, 2019)

SECTION 3 (G) - The elements of violation of Section 3 (g) are: (a) that the accused is a public officer;
(b) that he entered into a contract or transaction on behalf of the government; and (c) that such
contract or transaction is grossly and manifestly disadvantageous to the government. (PCGG vs.
Gutierrez, G.R. No. 194159, October 21, 2015)

Unlike Section 3 (e) of RA No. 3019, Section 3 (g) does not require the giving of unwarranted benefits,
advantages or preferences to private parties who conspire with public officers, its core element being
the engagement in a transaction or contract that is grossly and manifestly disadvantageous to the
government. (PCGG vs. Office of the Ombudsman, G.R. No. 193176, February 24, 2016)

Behest loan – Granting of behest loan by government bank or entity to private individual violates
Section 3 (g) of RA No. 3019 by entering into a contract or transaction on behalf of the government,
which is grossly and manifestly disadvantageous to the government; or Section 3 (e) by giving
unwarranted benefits, advantage or preference to private party.

The following criteria may be utilized as a frame of reference in determining a behest loan: (1) it is
under-collateralized; (2) the borrower corporation is undercapitalized; (3) direct or indirect
endorsement by high government officials like presence of marginal notes; (4) stockholders, officers
or agents of the borrower corporation are identified as cronies (of high government officials); (5)
deviation of use of loan proceeds from the purpose intended; (6) Use of corporate layering; (7) non-
feasibility of the project for which financing is being sought; and (8) extraordinary speed in
which the loan release was made. (See: PCGG vs. Desierto, G.R. No. 139296, November 23, 2007)

The amount and number of loans (P16 million) obtained from the government bank by the private
company despite being undercapitalized (P7 million capital stock) and absence of any action by the
bank to collect full payment are showing that the contract, which is manifestly disadvantageous on
the part of the government, violates Section 3 (g) of RA No. 3019. The private individual, who
obtained that loan, and the responsible bank officers are liable for the crime of corruption. Private
persons may likewise be charged with violation of Section 3(g) of RA 3019 if they conspired with the
public officer in consonance with the avowed policy of this law, which is to repress certain acts of
public officers and private persons (Singian, Jr. vs. Sandiganbayan, G.R. Nos. 195011-19 September
30, 2013).
SECTION 3 (H) - Violation of Section 3 (h) of RA No. 3019 is committed by a public officer, who
directly or indirectly have financial or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or takes part in his official capacity, or in which he is prohibited
by the Constitution or by any law from having any interest.

In People vs. Hon. Sandiganbayan, G.R. Nos. 233280-92, September 18, 2019, the accused is a TESDA
director. The Bids and Award Committee members recommended the award to supplies materials to
CDZ Enterprises owned by the sister of the accused. TESDA had several purchase orders from this
company. Accused was acquitted of the crime of violation of Section 3 (h) of RA No. 3019.

In this case, the prosecution merely assumed the pecuniary interest of the accused when her sister's
company, CDZ Enterprises, was able to submit the lowest price quotations for the contracts due to
the accused's intervention. The existence of relationship per se does not automatically translate to
having direct or indirect financial interest in the subject contracts. The prosecution was not able to
present evidence that the accused received any financial benefit from these transactions. Mere
allegation that the parties are related to each other is not conclusive proof of such pecuniary
interest.

In his dissenting opinion, Justice Leonen argued that accused, a TESDA director, has the burden to
contradict the presumption that she indirectly benefitted financially from the transaction of her sister
with TESDA. When a person assists her sibling in obtaining an award, that person will indirectly
benefit financially following the ordinary course of life in the Filipino family. Article 291 of the Civil
Code provides for the obligation of brothers and sisters to render support to each other.

Majority of the justices disagreed with Justice Leonen. Indirect pecuniary benefit cannot be
presumed from the mere fact of assistance being rendered by accused to her sister in obtaining the
award at TESDA. Article 291 of the Civil Code cannot be made to apply in this case, since the record is
bereft of proof that accused was obliged to financially support or that she was, in fact, providing
financial support to her sister or that the latter was financially dependent on the former. Since her
sister is the registered owner of CDZ Enterprises, it is presumed that she is financially independent
from accused.

In his dissenting opinion, Justice Leonen argued that the accused should have be convicted based on
the case of Republic vs. Tuvera, G.R. No. 48246, February 16, 2007, where it was expressly found that
a relationship, in and of itself, can establish the indirect pecuniary interest of someone charged with
violation of Section 3 (h) of RA No. 3019.

Majority of the Justices disagreed with Justice Leonen. In the Tuvera case, the respondent, who is the
Presidential Executive Assistant of President Marcos, is the father of the principal stockholder of Twin
Peaks. Acting on the request of Twin Peaks, President Marcos granted Timber License Agreement in
favor of the company. There was no public bidding. They failed to comply with the requisites for the
grant of such agreement by negotiation. Twin Peaks was not legally capacitated to be granted such
agreement because it has insufficient logging equipment to engage in the logging business. According
to the Supreme Court in Tuvera case, certainly, the circumstances presented by the evidence of the
prosecution are sufficient to shift the burden of evidence to respondent in establishing that he did
not violate the provisions of RA No. 3019 in relation to the Twin Peaks' request. The burden was
shifted to respondent because he waived his right to present evidence to disprove that he violated
the allegations against him.

None of the foregoing circumstances in Tuvera case were present in the case of People vs. Hon.
Sandiganbayan. Unlike in the Tuvera case where the totality of the prosecution evidence created a
presumption of indirect pecuniary benefit against the accused, the prosecution in People vs. Hon.
Sandiganbayan failed to show the connection of Zurbano to CDZ Enterprises or how Zurbano's
intervention led to her acquisition of any financial interest or benefit. The assistance rendered to a
sibling maybe by reason of love or some other concept of familial duty, without not necessarily
contemplating any monetary gain.

INORDINATE DELAY DOCTRINE – Inordinate delay in resolving a criminal complaint is violative of the
constitutionally guaranteed right to due process and to the speedy disposition of cases, which
warrants the dismissal of the criminal case. Delay prejudices the accused or respondent and the State
just the same. Prejudice should be assessed in the light of the interest of the defendant that the
speedy trial was designed to protect, namely: to prevent oppressive pre-trial incarceration; to
minimize anxiety and concerns of the accused to trial; and to limit the possibility that his defense will
be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system. There is also prejudice if the defense
witnesses are unable to recall accurately the events of the distant past.

In Coscolluela, the fact that it took the Ombudsman eight years to resolve a case under preliminary
investigation was considered violative of the right to speedy disposition of cases. In Cervantes, it took
the OSP six years from the filing of the initiatory complaint before deciding to file an information; this
was struck down as well. In Tatad v. Sandiganbayan, a three-year delay in the termination of the
preliminary investigation by the Tanodbayan was considered violative of the right. In Lopez, Jr. v.
Office of the Ombudsman, the preliminary investigation was resolved close to four years from the
time all the counter- and reply-affidavits were submitted to the Ombudsman, and this was
similarly struck down. In People v. Sandiganbayan, the fact-finding investigation and preliminary
investigation by the Ombudsman lasted nearly five years and five months, which the Court
considered an inordinate delay. The same is true in Angchangco, Jr., and Roque v. Office of the
Ombudsman, where the delay involved a period of six years, more or less. In Licaros, the failure of
the Sandiganbayan to decide the case even after the lapse of more than 10 years after it was
submitted for decision was declared to involve "more than just a mere procrastination in the
proceedings. In this case, the preliminary investigation proceedings in said case took more than 11
long years to resolve. Thus, the case against petitioner should be dismissed (Almeda vs. Office of the
Ombudsman, G.R. No. 204267, July 25, 2016; Magbaet vs. Sandiganbayan, G.R. Nos. 230869-70,
September 16, 2020) The prosecution's sheer inaction means that it has failed to diligently and timely
pursue its case. Such failure amounts to a violation of an accused's constitutional rights, warranting
the "radical relief' of putting an end to the proceedings. Concurring opinion by Justice Leonen in
People vs. Pagal, G.R. No. 241257, September 29, 2020).

RA No. 6713 - In order to sustain a conviction for violation of Section 7 (d) of RA 6713 (Code of
Conduct and Ethical Standard for Public Officials), the following elements must be proved with moral
certainty: (a) that the accused is a public official or employee; (b) that the accused solicited or
accepted any loan or anything of monetary value from any person; and (c) that the said act was done
in the course of the accused's official duties or in connection with any operation being regulated by,
or any transaction which may be affected by the functions of his office.

In this case, the prosecution was able to establish all the foregoing elements, considering that: (a) at
the time the subject loans were obtained, accused was a public official; (b) she solicited and accepted
the subject loans from CABMPCI, which was a cooperative that was being regulated by her office;
and (c) the subject loans were obtained from CABMPCI, the transactions and operations of which are
regulated by the functions of the office of the accused. The Cooperative Code makes membership
in cooperatives available to all individuals regardless of their social, political, racial or religious
background or beliefs. However, this law does not accord accused, by virtue of the functions of her
office, complete freedom in any of her personal transactions with any cooperative despite her
membership therein. The limitation of CDA officials and employees to obtain loans from cooperatives
is but a necessary consequence of the privilege of holding their public office. (Villanueva vs. People,
G.R. No. 237738, June 10, 2019)

Receiving gift – Receiving gift by public officer (e.g policeman) per se is not a crime.

Under Section 3 (d) of RA No.6713, "receiving any gift" includes the act of accepting directly or
indirectly, a gift from a person other than a member of his family or relative as defined in this Act,
even on the occasion of a family celebration or national festivity like Christmas, if the value of the
gift is neither nominal nor insignificant, or the gift is given in anticipation of, or in exchange for, a
favor.

If the value of the gift is nominal or insignificant, or the gift is not given in anticipation of, or in
exchange for, a favor, the police officer, who received such gift, is not liable under Section 7 (d) of RA
No. 6713.

In Mabini vs. Raga, A.M. No. P-06-2150, June 21, 2006, complainant presented a letter signed by
Branch 28 employees, including respondent, thanking Governor Roño for his “donation” of
P1,500.00. However, there is no proof whatsoever that a solicitation took place. The cash gift of
P1,500.00 was received not by respondent Lilia alone, but together with eleven other employees of
Branch 28, to purchase lechon for their Christmas party; hence, the individual benefit of the
employees may be considered nominal. Neither does it appear from the evidence that the nominal
gift was given in anticipation of, or in exchange for, a favor. Thus, respondent Lilia cannot be held
liable under Republic Act No. 6713 because the governor’s gift, aside from being unsolicited, was also
nominal or insignificant in value; and not given in anticipation of, or in exchange for, a favor. The
receipt of the gift does not fall within the ambit of Section 7 (d) of RA No. 6713, in relation to
Sections 3 (c) and (d).

Section 14 of RA No. 3019 recognizes as lawful receipt of unsolicited gift of insignificant value of a gift
given as a token of gratitude. This provision provides: Unsolicited gifts or presents of small or
insignificant value offered or given as a mere ordinary token of gratitude or friendship according to
local customs or usage, shall be excepted from the provisions of this Act.

PLUNDER - Plunder is committed by any public officer who shall amass, accumulate or acquire ill-
gotten wealth through a combination or series of overt or criminal acts (predicate crimes) in the
aggregate amount or total value of at least P50,000,000.00 by himself or in connivance with other
persons.

Predicate crimes - The predicates of plunder are as follows:

1. Misappropriation, conversion, misuse, or malversation of public funds or raids on the public

treasury;

2. Receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any
other form of pecuniary benefits from any person and/or entity in connection with any government
contract or project or by reason of the office or position of the public officer;

3. Illegal or fraudulent conveyance or disposition of assets belonging to government;

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any
other form of interest or participation including the promise of future employment in any business
enterprise or undertaking;

5. By establishing agricultural, industrial or commercial monopolies or other combinations

and/or implementation of decrees and orders intended to benefit particular persons or special
interests; or

6. By taking advantage of official position, authority, relationship, connection or influence to

unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.

The concept of malversation as a predicate crime of plunder is the same as that of malversation
under Article 217 of the Revised Penal Code. (Gloria Macapagal Arroyo v. People, G.R. No. 220598,
July 19, 2016)

The plunderer must be benefitted from the raid on public treasury to consider this predicate crime of
plunder as present. The interpretation of the term “raid on a public treasury” should be made in
association with the words that immediately preceded it, and that are “misappropriation,
conversion, misuse or malversation of public funds.” All of these predicate crimes presuppose that
the plunderer benefitted from them. (See: Gloria Macapagal Arroyo v. People, supra) Justice Leonen
in his dissenting opinion said that persona benefit is not an element of plunder.

In Valencia vs. Sandiganbayan, G.R. No. 220398, June 10, 2019, the information for plunder
alleged that the accused diverted the funds and converted the same, withdrew and received
and unlawfully transferred the proceeds into their possession and control, and that they took
advantage of their respective positions to enrich themselves. The defense filed a motion to quash
because accused only allegedly amassed the amount of P13.3 million which was way below the P50
million threshold for plunder. Sandiganbayan denied the motion to quash since there was sufficient
evidence to convict him of malversation, which is predicate crime of plunder. The denial was
elevated to the Supreme Court. It was held that in averring the predicate act of malversation, the
State did not sufficiently allege the aforementioned essential elements of malversation in the
information. The omission from the information of factual details (e.g. the accused is an accountable
officer) descriptive of the aforementioned elements of malversation highlighted the insufficiency of
the allegations. Consequently, the position of the Sandiganbayan is entirely unfounded.

Note: Valencia principle is not be applied where the elements of malversation as a predicate crime of
plunder are sufficiently alleged in the information.

Identification of the main plunderer - If there are several accused in plunder case, who acted under
a single conspiracy, or wheel conspiracy, or chain conspiracy, the main plunderer must be identified.
The law on plunder requires that a particular public officer must be identified as the one who
amassed, acquired or accumulated ill-gotten wealth in the amount of at least P50 million. Surely, the
law requires in the criminal charge for plunder against several individuals that there must be a main
plunderer and her co-conspirators. (See: Arroyo vs. People, G.R. No. 220598, April 18, 2017)

In Arroyo vs. People, supra, a case for plunder involving the misappropriation of PCSO funds
amounting to P360 million was filed against ten (10) accused including President Arroyo. However,
the information did not identify President Arroyo or any other accused as the principal plunderer.
Hence, the case was dismissed. It was held that because plunder is a crime that only a public official
can commit by amassing, accumulating, or acquiring ill-gotten wealth in the aggregate amount or
total value of at least ₱50,000,000.00, the identification in the information of such public official as
the main plunderer among the several individuals thus charged is logically necessary under the law
itself. The individuals charged therein were 10 public officials; hence, it was only proper to identify
the main plunderer or plunderers among the 10 accused who herself or himself had amassed,
accumulated, or acquired ill-gotten wealth with the total value of at least ₱50,000,000.00.

With due respect to the Supreme Court, it is submitted that identification of main plunderers among
the accused is not indispensable in the prosecution for plunder since all accused can be the
plunderers. If 3, 5 or 9 accused out of 10 can be the main plunderers, it follows that 10 out of 10 or
all accused can be the plunderers. The information in the Arroyo case alleged that accused are all
public officers conspiring with one another amass, accumulate and acquirePHP365,997,915.00
through any or a combination or a series of overt or criminal acts. Thus, the information identified
them all as main plunderers. In fact, Justice Leonen and Justice Serena dissented. But for purpose of
the bar examination, the majority ruling in Arroyo case should be followed.

Single plunderer - Plunder can be committed by the public officer acting alone (Ejercito v.
Sandiganbayan, G.R. Nos. 157294-95, November 30, 2006, Concurring opinion of Justice Panganiban)

Conspiracy in Plunder - Plunder can be committed by the public officer in connivance with other
persons. If the public officer committed plunder in connivance with other persons, the “other
persons” or the participants (secondary offenders) are also liable on the basis of conspiracy.
Moreover, the participants, with whom the public officer connived in committing plunder, are liable
under R.A. No. 7080. Under Section 2 of this law, any person who participated with the said public
officer in the commission of an offense contributing to the crime of plunder shall likewise be
punished for such offense.

Where the public officer connives with other persons in committing plunder, their liabilities are
subject to single conspiracy or multiple conspiracies. There are two structures of multiple
conspiracies, namely: wheel or circle conspiracy and chain conspiracy.

Single Conspiracy - In single conspiracy, the public officer conspired with a single individual or group
in committing plunder. The main plunderer in this case must be a public officer. But the participants
in this case can be public officers or private individuals.

Hypothetical problem: A Senator conspired with private individual, Maria, in acquiring ill-gotten
wealth through a series of misappropriation of his pork barrel amounting to P80 million. They agreed
to equally divide the money. On the basis of conspiracy, the total amount of ill-gotten wealth
acquired by the conspirators shall be considered for purposes of determining if P50-million threshold
amount had been reached. In this case, since total amount of ill-gotten wealth acquired by Senator
and Maria is P80 million, they are liable for plunder. Although the Senator merely acquired ill-gotten
wealth in the amount of P40 million, the act of Maria in acquiring ill-gotten wealth amounting to P40
million shall be treated as the act of the Senator due to conspiracy. Because of the collective
responsibility rule, the ill-gotten wealth acquired by the Senator shall be considered as P80 million,
although in reality he merely acquired P40 million. Since the Senator is liable for plunder, Maria, with
whom the Senator connived, is also liable for plunder although she is a private individual. In Juan
Ponce Enrile v. People, G.R. No. 213455, August 11, 2015, in the crime of plunder, the amount of ill-
gotten wealth acquired by each accused in a conspiracy is immaterial for as long as the total amount
amassed, acquired or accumulated is at least P50 million.
In single conspiracy involving plunder, the main plunderer must be identified. (see: Gloria Macapagal
Arroyo v. People, supra) In the above-stated hypothetical problem, the principal plunder is the
Senator.

Hypothetically, if in the case Gloria Macapagal Arroyo v. People information properly alleged, and
evidence established that single conspiracy among the ten accused existed, and that President
Arroyo is the main plunderer while the nine accused are secondary offenders, they could be held
liable for plunder even without showing the particular amount of ill-gotten wealth acquired by each
accused out of the P360 million. Because of conspiracy, the collective acts of all of the ten accused in
acquiring P360 million shall be considered as the acts of President Arroyo although she merely
acquired certain portion of this amount.

Wheel Conspiracy - Under the wheel or circle conspiracy, there is a single person or group (the hub)
dealing individually with two or more other persons or groups (the spokes). (Fernan, Jr. v. People,
G.R. No. 145927, August 24, 2007) In wheel conspiracy involving plunder, the public officer (main
plunderer or the hub) amasses, accumulates and acquires ill-gotten wealth in connivance with others
(the spokes). The rim that enclosed the spokes was the common goal in the overall conspiracy, i.e.,
the amassing, accumulation and acquisition of ill-gotten wealth.

Hypothetical problem: Pedro, the President of the Philippines, conspired with A, private individual, in
connection with his shares on the jueteng collections in the amount of P40 million; and with B,
private individual, in connection with his P40 million commission pertaining to transaction where
GSIS and SSS bought the share of belly corporation on his order. A and B received P20 million each
out of these transactions. This is not a single conspiracy because the conspiracy of the President with
A in connection with jueteng collections is different from his conspiracy with B in connection with his
commission. This is a wheel conspiracy since the President is dealing with A and B individually. The
President is the hub while A and B are spokes. Since there is wheel conspiracy in this case, the total
amount of P80 million acquired by the President, A and B shall be considered for purposes of
determining if P50-million threshold amount had been reached.

Since the total amount of ill-gotten wealth acquired by President, A and B is P80 million, they are
liable for plunder. Although the President merely acquired ill- gotten wealth in the total amount of
P40 million, the act of A in acquiring P20 million and the act of B in acquiring P20 million shall be
treated as acts of the President. Because of the collective responsibility rule due to wheel conspiracy,
the ill-gotten wealth acquired by the President shall be considered as P80 million although in reality
he merely acquired P40 million. Since the President is liable for plunder, A and B, with whom the
President connived, are also liable for plunder although they are private individuals.

In wheel conspiracy involving plunder, the main plunderer must be identified. (see: Gloria Macapagal
Arroyo v. People, supra) In the above-stated hypothetical problem, the principal plunder is the
President.

USE OF INFORMATION TECHNOLOGY - Use of information and communications technologies in

committing felony or offense under special law is a qualifying circumstance under Section 6 of RA No.
10175.

Under Section 6 of RA No. 10175, the penalty for crimes punishable under special laws committed
through and with the use of information and communication technologies shall be one degree higher
than that provided the law. However, this provision requires the application of the rules on
graduation of penalties under the Revised Penal Code. Hence, Section 6 finds application only if
special law involved has adopted the technical nomenclature of the penalties of Revised Penal Code.
CYBEL LIBEL - Content-related offenses includes cyber libel, cybersex and cyber child pornography. A
prosecution for cybercrime offenses shall be without prejudice to any liability for violation of any
provision of RPC or special laws (Section 7). Despite of Section 7, the offender cannot be prosecuted
for cyber libel or cyber child pornography under RA No. 10175 in addition to libel under RPC or child
pornography under RA No. 9775 since this will offend the constitutional rule on double jeopardy
(Disini vs. Secretary of Justice, G.R. No. 203335, February 11, 2014).

Libel is not a constitutionally protected speech and that the government has an obligation to protect
private individuals from defamation. Indeed, cyber libel is actually not a new crime since Article 353,
in relation to Article 355 of the Revised Penal Code, already punishes it. Online defamation
constitutes “similar means” for committing libel (Disini vs. Secretary of Justice, G.R. No. 20335, and
February 18. 2014).

Prescription for cyber libel - One of the cybercrimes defined under Section

4 of R.A. No. 10175 is cyber libel. Section 8 of R.A. No. 10175 prescribes penalties for all cybercrimes
under Section 4 except cyber libel. It seems that through oversight Congress failed to provide a
penalty for cyber libel. Hence, an offender, who committed libel through the internet, cannot be
prosecuted for cyber libel under Section 4 of R.A. No. 10175 simply because there is no penalty under
Section 8 for committing it.

However, libel through the internet is still punishable under Article 355 of the Revised Penal Code.
Section 6 of R.A. No. 10175, using information or communication technology in committing a crime
will upgrade the penalty for it by one degree. In sum, one, who committed libel through the internet
shall be prosecuted for libel under RPC with the qualifying circumstance under R.A. No. 10175. He
cannot be prosecuted for libel under Section 6 of R.A. No. 10176 since this provision does not define
a crime but merely provides a modifying circumstance that will adjust the penalty one degree higher
for a crime punishable under the Revised Penal Code.

Since an offender in committing internet libel can only be prosecuted for libel qualified by the
circumstance of using information or communication technology under RPC in relation to RA No.
10175, Article 90 of the Code on prescription applies.

By the same token, the period of prescriptive for homicide with the special aggravating circumstance
of use of loose firearm under Section 29 of RA No. 10883 is still governed by Article 90 of the Revised
Penal Code, and not by Act 3326.

In Tolentino vs. People, G.R. No. 240310, August 06, 2018, the Supreme Court apply Article 90 of
RPC to cyber libel.

Under Article 90 of the Revised Penal Code, the crime of libel shall prescribe in one year while crime
punishable by prision mayor shall prescribe in 15 years. In my submission, the one-year prescriptive
period for libel under Article 90 shall apply. However, the Supreme Court in Tolentino vs. People,
supra, applied the 15 years rule. In the said case, the Supreme Court ruled:

“Anent petitioner's claim that the action has prescribed, although Republic Act (RA) No. 10175, or the
Cybercrime Prevention Act of 2012, does not categorically state the prescriptive period for such
action, the new prescriptive period for the crime of libel in relation to RA No. 10175 can be derived
from the penalty imposed on the said crime. Section 6 of RA No. 10175 provides that the "penalty to
be imposed shall be one (1) degree higher than that provided for by RPC(RPC), as amended, and
special laws, as the case may be." As such, the former penalty of prision correccional in it its
minimum and medium periods is increased to prision corrreccional in its maximum period to prision
mayor in its minimum period. The new penalty, therefore, becomes afflictive, following Section 25 of
the RPC. Corrolarily, following Article 90 of the RPC, the crime of libel in relation to RA 10175 now
prescribes in fifteen (15) years. Thus, respondent Eva Rose Pua's filing of the complaint on August 8,
2017 against petitioner's Facebook post dated April 29, 2015 was well within the prescriptive period
for libel in relation to RA 10175.”

HAZING - Hazing refers to any act that results in physical or psychological suffering, harm, or injury
inflicted on a recruit, neophyte, applicant, or member as part of an initiation rite or practice made as
a prerequisite for admission or a requirement for continuing membership in a fraternity, sorority, or
organization. Hazing includes paddling, whipping, beating, branding, forced calisthenics, exposure to
the weather, forced consumption of any food, liquor, beverage, drug or other substance, or any
other brutal treatment or forced physical activity which is likely to adversely affect the physical and
psychological health of such recruit, neophyte, applicant, or member. Hazing shall also include any
activity, intentionally made or otherwise, by one person alone or acting with others, that tends to
humiliate or embarrass, degrade, abuse, or endanger, by requiring a recruit, neophyte, applicant, or
member to do menial, silly, or foolish tasks. (Section 2 of RA No. 8049 as amended by RA No. 11053)

The elements of the crime of hazing are: (1) That there is initiation rite or practice made as a
prerequisite for admission or a requirement for continuing membership in a fraternity, sorority, or
organization; (2) That during the initiation rite or practice, physical or psychological suffering, harm,
or injury is inflicted on a recruit, neophyte, applicant, or member of the fraternity, sorority or
organization; and (3) as a consequence of the hazing, death, rape, sodomy, or mutilation results.

Initiation or initiation rites refer to ceremonies, practices, rituals, or other acts, whether formal or
informal, that a person must perform or take part in order to be accepted into a fraternity, sorority,
or organization as a full-fledged member. It includes ceremonies, practices, rituals, and other acts in
all stages of membership in a fraternity, sorority, or organization. (Section 2 of RA No. 8049 as
amended by RA No. 11053)

Organization refers to an organized body of people which includes, but is not limited to, any club,
association, group, fraternity, and sorority. This term shall include the Armed Forces of the
Philippines (AFP), the Philippine National Police (PNP), the Philippine Military Academy (PMA), the
Philippine National Police Academy (PNPA), and other similar uniformed service- learning
institutions. (Section 2 of RA No. 8049 as amended by RA No. 11053) The Philippine Merchant Marine
Academy is included in the term organization within the meaning of the law. People v. Bayabos, G.R.
No. 171222, February 18, 2015) Company or Private Corporation is covered by the hazing law. Under
RA No. 8049, in no case shall hazing be made a requirement for employment in any business or
corporation.

Failure to allege that the physical or psychological harm were employed as prerequisite for admission
(or a requirement for continuing membership) would prevent the successful prosecution of the
criminal responsibility of the accused, either as principal or as accomplice, for the crime of hazing.
Plain reference to a technical term “hazing” is insufficient and incomplete, as it is but a
characterization of the acts allegedly committed and thus a mere conclusion of law. (People v.
Bayabos, supra) However, in Villarba vs. CA, G.R. No. 227777, June 15, 2020, the Supreme Court
through Justice Leonen did not follow the Bayabos principle. It was held that the lack of the phrase
"prerequisite to admission" does not make the Information invalid. Even with its absence, the alleged
facts, which include the controlling words 'fraternity,' 'initiation,' 'hazing,' and 'recruit, ' would have
reasonably informed accused of the nature and cause of the accusation against him.
Prior to RA No. 11053, the crime of hazing is confined to a situation where the infliction of physical or
psychological harm is a prerequisite for admission in a fraternity, sorority, or organization. However,
there are occasions where the organization will first admit the neophyte as member, and then,
hazing will be made as post-requisite for admission. Thus, RA No. 11053 expanded the concept of
hazing by covering initiation rite or practice made not only as a prerequisite for admission but also as
a requirement for continuing membership in a fraternity, sorority, or organization.

Prior to RA No. 11053, the hazing is punishable under RA No. 8049 if as a consequence of hazing,
death, rape, sodomy, mutilation or serious, less serious or slight physical injuries results. RA No. 8049
does not prescribe penalty for mere infliction of psychological harm. RA No. 8049 as amended by RA
No. 11053, declares all forms of hazing shall be prohibited in fraternities, sororities, and
organizations. Section 14 thereof prescribes for penalties for all forms of hazing. However, the
penalty is higher where death, rape, sodomy, mutilation results from hazing.

a. Malum Prohibitum - Prior to R.A. No. 8049, good faith is a defense in homicide where the
victim is killed during hazing. The consent of the victim and lack of intent to kill of the accused would
negate dolo, which is an important element of homicide. Hence, the crime committed is only reckless
imprudence resulting in homicide. (Villareal v. People, G.R. No. 151258, February 1, 2012) Now, the
participants of the hazing with or without dolo are liable for violation of

R.A. No. 8049 if the neophyte died as a consequence thereof.

Instead of amending RPC which penalizes mala in se, where good faith is a defense, the Congress
created a special law on hazing, founded upon the principle of mala prohibita where good faith is not
a defense.

The deliberation of the Senate shows that what is important is not the intention to kill the neophyte
during the hazing but the result of the act of hazing. Recognizing the malum prohibitum
characteristic of hazing, RA No. 8049 as amended, provides that any person charged with the said
crime shall not be entitled to the mitigating circumstance that there was no intention to commit so
grave a wrong.

Also, the framers of the law intended that the consent of the victim to be injured shall not be a
defense in hazing. The very act of inflicting physical or psychological pain is a punishable act. Death is
just an aggravating circumstance (Dungo v. People, G.R. No. 209464, July 1, 2015) Section 12 of RA
No. 11053 provides that the defense that the recruit, neophyte, or applicant consented to being
subjected to hazing shall not be available to persons prosecuted for hazing. Any form of approval,
consent, or agreement, whether written or otherwise, or of an express waiver of the right to object
to the initiation rite or proceeding, which consists of hazing, made by a recruit, neophyte, or
applicant prior to an initiation rite that involves inflicting physical or psychological suffering, harm, or
injury, shall be void and without any binding effect on the parties.

b. Presence - Generally, mere presence at the scene of the crime does not in itself amount to
conspiracy. (Dungo v. People, supra) however, under RA No. 8049 as amended by RA No. 11053,
mere presence can be a source of criminal liability. Section 14 punishes all persons who are present
in the conduct of the hazing. However, the penalty is higher if the persons, who are present during
the hazing, are (1) officers of the fraternity, sorority, or organization; (2) former officers, nonresident
members, or alumni thereof; and (3) members thereof who are intoxicated or under the influence of
alcohol or illegal drugs.
c. Actual participation - The penalty for hazing is also higher if the person actually participated
in the conduct of the hazing. The actual participants are liable for hazing even if they are not
members of the fraternity, sorority, or organization.

R.A. No. 8049 as amended by RA No. 11053 presents a novel provision that introduces a disputable
presumption of actual participation; and which modifies the concept of conspiracy. Section 14
thereof provides that the presence of any person, even if such person is not a member of the
fraternity, sorority, or organization, during the hazing is prima facie evidence of participation therein
as a principal unless such person or persons prevented the commission of the acts punishable herein
or promptly reported the same to the law enforcement authorities if they can do so without peril to
their person or their family.

This provision is unique because a disputable presumption arises from the mere presence of the
offender during the hazing, which can be rebutted by proving that the accused took steps to prevent
the commission of the hazing or promptly reports the same to the authorities.

Generally, mere presence at the scene of the crime does not in itself amount to conspiracy.
Exceptionally, under R.A. No. 8049, the participation of the offenders in the criminal conspiracy can
be proven by the prima facie evidence due to their presence during the hazing, unless they
prevented the commission of the acts therein or reported the matter to the authorities. (Dungo v.
People, supra; 2018 Bar Exam)

d. Planning – The law punishes all persons, who actually planned the conduct of the hazing. The
original version of RA No. 8049 merely punished officers, former officers, or alumni of the fraternity,
sorority or organization, who actually planned the hazing. Under this law as amended by RA No.
11053, any person including a non-member is criminally liable for planning the conduct of hazing.
Even though these planners were not present when the acts constituting hazing were committed,
they shall still be liable as principals.

e. Adviser – The law also punishes the adviser of a fraternity, sorority, or organization who is
present when the acts constituting the hazing were committed and failed to take action to prevent
the same from occurring or failed to promptly report the same to the law enforcement authorities if
such adviser or advisers can do so without peril to their person or their family. The liability of the
adviser arises, not only from his mere presence in the hazing, but also his failure to prevent the
same. (Dungo v. People, supra)

f. Inducement – Officers or members of a fraternity, sorority, or organization, who knowingly

cooperated in carrying out the hazing by inducing the victim to be present thereat, are liable for
hazing. These officers or members are penalized, not because of their direct participation in the
infliction of harm, but due to their indispensable cooperation in the crime by inducing the victim to
attend the hazing (Dungo v. People, supra; 2018 Bar Exam). However, this rule is only applicable if
the inducer is an officer, or member of a fraternity, sorority, or organization.

The accused claim that the information avers a criminal charge of hazing by actual participation, but
the only offense proved during the trial was hazing by inducement. The information alleged that the
accused during a planned initiation rite and being then officers of APO fraternity used personal
violence upon a neophyte resulting to his death. The “planned initiation rite” as stated in the
information included the act of inducing victim to attend it. Accused not only induced victim to be
present at the resort, but they actually brought him there. The hazing would not have been
accomplished were it not for the acts of the petitioners that induced the victim to be present. Hence,
they are liable for hazing. (Dungo v. People, supra)
g. Incumbent officers - The incumbent officers of the fraternity, sorority, or organization
concerned shall be jointly liable with those members who actually participated in the hazing.

h. Owner or lessee – The law punishes the owner or lessee of the place where hazing is
conducted as principal for hazing, when he has actual knowledge of the hazing conducted therein
but failed to take any action to prevent the same from occurring or failed to promptly report the
same to the law enforcement authorities if they can do so without peril to their person or their
family. (2018 Bar Exam)

Under the old version of RA No. 8048, only owner of the place of hazing is liable. However, under this
law as amended by RA No. 11053, a lessee can be held also be held liable for hazing. Under the old
rule, such owner is only liable as an accomplice. Now, he is responsible as principal. Moreover, under
the new rule, promptly reporting the matter to the authorities is an additional defense for such
owner.

i. Parents – Under the law, if the hazing is held in the home of one of the officers or members
of the fraternity, sorority, or organization, the parents shall be held liable as principals for hazing
when they have actual knowledge of the hazing conducted therein but failed to take any action to
prevent the same from occurring or failed to promptly report the same to the law enforcement
authorities if such parents can do so without peril to their person or their family.

Under the old version of RA No. 8048, parent is only liable as an accomplice. Under this law as
amended by RA No. 11053, he is responsible as principal. Moreover, under the new rule, promptly
reporting the matter to the authorities is an additional defense for such parent.

j. School authorities - School authorities including faculty members as well as barangay,

municipal, or city officials shall be liable as an accomplice for hazing conducted by fraternities,
sororities, and other organizations, if it can be shown that: (1) the school or barangay, municipal, or
city officials allowed or consented to the conduct of hazing; or (2) where there is actual knowledge of
hazing, but such officials failed to take any action to prevent the same from occurring or failed to
promptly report to the law enforcement authorities if the same can be done without peril to their
person or their family.

Even though school authorities and faculty members have had no direct participation in hazing, they
may nonetheless be charged as accomplices if it is shown that (1) hazing occurred; (2) the accused
are school authorities or faculty members; and (3) they consented to or failed to take preventive
action against hazing in spite actual knowledge thereof (People v. Bayabos, supra) or to report the
matter to the authorities.

The corresponding responsibilities of the principal, accomplice, and accessory are distinct from each
other. As long as the commission of the offense (hazing) can be duly established in evidence, the
determination of the liability of the accomplice can proceed independently of that of the principal.
(People v. Bayabos, supra)

Under Section 7 of RA No. 8049 as amended by RA No. 11053, the faculty adviser or advisers, who
accepted his role after being selected by an accredited fraternity, sorority, or organization, shall be
responsible for monitoring the activities of the fraternity, sorority, or organization. In case of
violation of any of the provisions of this Act, it is presumed that the faculty adviser has knowledge
and consented to the commission of any of the unlawful acts stated therein.

Under Section 4, 5, 10 and 11 of RA No. 8049 as amended by RA No. 11053, initiation rites are
allowed the fraternity, sorority or organization obtained approvable from school authority, or
punong barangay, or city or municipal mayor, authorities upon written application undertaking that
no harm of any kind shall be committed. During approved initiation rites, at least two school or
barangay, city or municipal representatives must be present. If hazing is still committed despite their
presence, no liability shall attach to them unless it is proven that they failed to perform an overt act
to prevent or stop the commission thereof.

Failure to provide school representatives during the approved initiation rites is also punishable.

Res inter alios acta rule - Res inter alios acta provides that a party's rights generally cannot be
prejudiced by another's act, declaration, or omission. However, in a conspiracy, the act of one is
the act of all, rendering all conspirators as co-principals "regardless of the extent and character of
their participation. Under Rule 130, Section 30 of the Rules of Court, an exception to the res inter
alios acta rule is an admission by a conspirator relating to the conspiracy. Hazing often involves a
conspiracy among those involved, be it in the planning stage, the inducement of the victim, or in the
participation in the actual initiation rites. The rule on res inter alios acta, then, does not apply.
(Fuertes vs. Senate of the Philippines, G.R. No. 208162, January 07, 2020, Justice Leonen)

Constitutionality of presumption of innocence - Under the Constitution, the accused in a criminal

case shall be presumed innocent until the contrary is proved. Since an accused is presumed to be
innocent, the evidentiary standard to convict him of the crime charged is high. Under the Rules on
Evidence, the prosecution must establish by evidence the guilt of the accused beyond reasonable
doubt. If there is doubt on whether the accused is guilty or innocent, the court must acquit him.

The constitutional rule on presumption of innocence does not however prohibits Congress from
enacting a law on presumption of guilt. However, in crafting a provision on presumption of guilt,
Congress must identify facts to be proven by the prosecution on which the presumption will be
based. For example, Section 5 of P.D. No. 1612 provides that mere possession of stolen properties
shall be prima facie evidence of fencing. This is a rule on presumption of guilt. The fact to be proven
by the prosecution is possession of the stolen property by the accused. From this fact, the accused
will be presumed to have committed the crime of fencing. In other words, the accused is presumed
to be guilty of fencing once the prosecution establishes that he is in possession of the stolen
property. If the accused cannot present clear and convincing evidence to overcome or rebut the
presumption of guilt, he will be convicted.

Ordinarily, the prosecution to cause the conviction of the accused must prove his guilt beyond
reasonable doubt. However, if the law provides a presumption of guilt, the prosecution will only
prove beyond reasonable doubt the facts on which the presumption will be based. While the burden
of proof and evidence lies on the prosecution, once the facts on which accused will be presumed to
be guilty are proven, the burden of evidence is shifted to the accused. To avoid conviction, he must
present clear and convincing evidence that he is innocent.

Presumptions of guilt under the law are constitutional. The constitutional presumption of innocence
is not violated when there is a logical connection between the fact proved and the ultimate fact
presumed. When such prima facie evidence is unexplained or not contradicted by the accused, the
conviction founded on such evidence will be valid. (Fuertes vs. Senate of the Philippines, G.R. No.
208162, January 7, 2020, Justice Leonen)

In Dizon-Pamintuan, G.R. No. 111426, July 11, 1994, the Supreme Court affirmed the constitutionality
of Section 5 of P.D. No. 1612, which provides presumption of guilt in the crime of fencing. It is
constitutional because there is a logical connection between the fact proved (possession of stolen
property) and the ultimate fact presumed (commission of fencing).
Presumption of guilt under the law is not offensive to the presumption of innocence under the
Constitution. These two presumptions are compatible since they will be applied successively, and not
simultaneously. In a criminal prosecution, the accused is initially presumed to be innocent. The
Constitution cannot be disregarded. Presumption of innocence is always the general rule. However,
this presumption is not conclusive. It can be overcome or rebutted. Hence, the prosecution may
present evidence to establish beyond reasonable doubt the fact of accused’s guilt or the fact on
which the accused will be presumed to be guilty under the law. If the prosecution establishes the
factual basis of the legislative presumption, the presumption of innocence will be procedurally
replaced by presumption of guilt.

Presence at the scene of the crime can be a basis of presumption of guilt under the law. Section 14
RA No. 8049 as amended by RA No. 11053 provides that the presence of any person, even if such
person is not a member of the fraternity, sorority, or organization, during the hazing is prima facie
evidence of participation therein as a principal unless such person or persons prevented the
commission of the acts punishable herein or promptly reported the same to the law enforcement
authorities if they can do so without peril to their person or their family.

Section 14 of RA No. 8049 provides a presumption guilt. If the prosecution proves beyond reasonable
doubt that the accused is present during the hazing, it will be presumed that he participated in the
hazing as principal. In sum, he is presumed to be guilty of hazing.

As a general rule, mere passive presence of a person at the scene of the crime does not make him a
co-conspirator. (People v. Silvestre and Atienza, G.R. No. L-35748, December 14, 1931). However,
Section 14 of RA No. 8049 provides exceptions. First, this law punishes a person who is present
during hazing. Second, the law provides a presumption of participation on the basis of presence of
the accused during the hazing. The penalty for participating in hazing is higher than that for being
presence during the hazing.

In Fuertes vs. Senate of the Philippines, supra, Justice Leonen, the Supreme Court affirmed the
constitutionality of Section 14 of RA No. 8049 on presumption of guilt because the accused fails to
show that there is no logical relation between the fact proved (presence of a person during the
hazing) and the ultimate fact presumed (their participation in the hazing as a principal). Neither has it
been shown how Section 14 of the Anti-Hazing Law does away with the requirement that the
prosecution must prove the participation of the accused in the hazing beyond reasonable doubt.

Constitutionally, Congress can amend RA No. 9165 (Dangerous Drugs Law) to include provisions on
presumption of guilt.

VIOLENCE AGAINST WOMEN - Psychological violence is an indispensable element of violation of

Section 5(i) of R.A. No. 9262. Equally essential is the element of emotional anguish and mental
suffering, which are personal to the complainant. Psychological violence is the means employed by
the perpetrator, while emotional anguish or mental suffering are the effects caused to or the damage
sustained by the offended party. The law does not require proof that the victim became
psychologically ill due to the psychological violence done by her abuser. Rather, the law only requires
emotional anguish and mental suffering to be proven. To establish emotional anguish or mental
suffering, jurisprudence only requires that the testimony of the victim to be presented in court, as
such experiences are personal to this party. (Araza vs. People, G.R. No. 247429, September 8, 2020;
XXX vs. People, G.R. No. 243049, October 05, 2020)

Section 5 (i) of RA No. 9262 on psychological violence against woman is a catch-all provision.
Physical violence and psychological violence -Physical violence against woman is punishable under
Section 5 (a). However, if physical violence caused mental or emotional anguish to the victim, the
offender may be prosecuted for psychological violence against woman under Section 5 (i). Physical
violence will be considered as an element of psychological violence.

In Dinamling v. People, G.R. No. 199522, June 22, 2015, accused’s acts of publicly punching, kicking
and stripping the victim of her pants and underwear, although obvious acts of physical violence, are
also instances of psychological violence since it was alleged and proven that they resulted in her
public ridicule and humiliation and mental or emotional distress. Accused was convicted of the
psychological violence against woman. Physical violence was treated as a mere element of the graver
crime of psychological violence against woman.

Economic violence and psychological violence -Deprivation of financial support is punishable as

economic violence against woman under Section 5 (e). (Melgar vs. People, G.R. No. 223477, February
14, 2018) However, if the deprivation of financial support caused mental or emotional anguish to the
offended woman, the offender may be prosecuted for both psychological violence against woman
under Section 5 (i) and economic violence against woman under Section 5 (e) (Reyes vs. People, G.R.
No. 232678, July 03, 2019)

In Melgar vs. People, G.R. No. 223477, February 14, 2018, accused has a dating and sexual
relationship with AAA resulting in BBB's birth. He failed to provide BBB support ever since the latter
was just a year old. Accused is charged with psychological violence against woman under Section 5 (i)
of RA No. 9262 for failure to give support which "caused mental or emotional anguish, public ridicule
or humiliation to AAA and BBB. No evidence was presented to show that deprivation of support
caused either AAA or BBB any mental or emotional anguish. However, the accused can be convicted
of economic violence against woman under Section 5 (e), which is necessarily included in the charge
of psychological violence against woman under Section 5 (i) of RA No. 9262. Deprivation or denial of
support, by itself and even without the additional element of psychological violence, is already
specifically penalized therein as economic violence.

Felony and psychological violence - Concubinage and bigamy are punishable under the Revised Penal
Code. However, if concubinage or bigamy caused mental or emotional anguish to the offended wife,
the offending husband may be prosecuted for psychological violence against woman.

In AAA v. BBB, G.R. No. 212448, January 11, 2018, the accused was prosecuted for psychological
violence against woman under Section 5 (i) for having an illicit affair with a Singaporean that causes
mental or emotional anguish to his wife.

In Araza vs. People, G.R. No. 247429, September 8, 2020, accused left his wife and decided to stay in
Zamboanga City where he maintained an illicit affair. He intentionally left his wife groping in the dark.
Without any explanation or mature conversation with his wife, he simply left his wife causing the
latter emotional and psychological distress. Accused committed the crime of psychological violence,
through his acts of marital infidelity, which caused mental or emotional suffering on the part of his
wife.

- END -

GOODLUCK TO ALL THE BAR TAKERS FROM JUDGE MARLO CAMPANILLA!!!