People v. Asamuddin, G.R. No.

213913, 02 September 2015

Facts:

Emelina hired appellant as messenger in E. Gloria Money Changer, Mandaluyong City,

sometime in 2006, with the main function of delivering local or foreign currencies to
clients or other money changers.11 Assigned to appellant to be used in the performance of
his work is a blue Honda XRM motorcycle with plate number UU-9142. 12 cralawrednad

At 12:30 in the afternoon of July 11, 2007, Emelina handed to appellant the cash amount
of P800,000.00, and various foreign denominations consisting of 66 pieces of lapad, 13 50
pounds, 530 dirhams, 467 Singaporean dollars, and 100 Brunei dollars, 14 with a peso
value of P277,995.00.15 She instructed appellant to bring the currencies to her friend Rina
Rosalial, a money changer in Mabini, Manila. 16 After receiving the monies from Emelina,
appellant left aboard his service motorcycle on his way to Manila. 17 cralawrednad

Imee, the domestic helper of Emelina, was then inside E. Gloria Money Changer, and saw
Emelina hand to appellant currencies of various denominations, 18 and as appellant left his
service motorcycle.19cralawrednad

By 1:30 p.m. of the same day, Emelina received a call from Rina Rosalial informing her
that appellant has yet to arrive in her shop.20 Emelina's calls to the cellular phones of
appellant and his wife were at naught, 21 prompting her to lodge a complaint against
appellant at the Philippine National Police, Criminal Investigation and Detection Group
(PNP-CIDG), Camp Crame.22 cralawrednad

In August 2007, the blue Honda XRM motorcycle with plate number UU-9142 was found
abandoned in Silang, Cavite, and was returned to Emelina. 23 cralawrednad

Appellant vehemently denied asporting currency totaling P1,077,995.00, and the subject
motorcycle. He admitted working as a Messenger/Runner at the E. Gloria Money Changer
starting October 2006 but he resigned from his job on July 10, 2007. Appellant asserted
that the money he received from Emelina on July 11, 2007 was his last salary for the
period July 1 to 10, 2007. His family's return to Zamboanga City on September 7, 2007
was due to the high cost of living in Metro Manila which he could no longer afford.

Issue:

The main issue for resolution is whether the CA correctly affirmed the conviction of the
appellant for Qualified Theft and Carnapping.

1
Ruling:

The elements of Carnapping as defined under Section 2 of R.A. No. 6539, as amended,
are:ChanRoblesvirtualLawlibrary

(1) the taking of a motor vehicle which belongs to another;

(2) the taking is without the consent of the owner or by means of violence against or
intimidation of persons or by using force upon things; and

(3) the taking is done with intent to gain. 37

cralawrednad

All these elements were established by the prosecution beyond reasonable doubt.

Exhibits "I"38 "J"39 and "K",40 proved that the blue Honda XRM motorcycle with plate
number UU-9142 used as a service vehicle by appellant was acquired from Triumph JT
Marketing Corporation by Manolito, Emelina's spouse, establishing the first  element.

It is the second element that the appellant claimed was not proven because the
prosecution's evidence failed to show that he took the motorcycle without the consent of
Emelina. Indeed, Emelina herself tasked the appellant to proceed to Mabini, Manila, and
permitted him to use the service motorcycle.

Unlawful taking, or apoderamiento, is the taking of the motor vehicle without the consent
of the owner, or by means of violence against or intimidation of persons, or by using force
upon things; it is deemed complete from the moment the offender gains possession of
the thing, even if he has no opportunity to dispose of the same. 41 In Roque v.
People,42 the Court ruled that qualified theft may be committed even when the personal
property is in the lawful possession of the accused prior to the commission of the felony.
The concept of unlawful taking in theft, robbery and carnapping being the same, 43the
holding in Roque v. People44 equally applies to carnapping. Henee, in People v.
Bustinera,45 appellant, who was hired as taxi driver, was found guilty of carnapping under
R.A. No. 6539 after he failed to return the Daewoo Racer taxi assigned to him by the cab
company where he was employed.

In the present case, the Solicitor General aptly argued that appellant's failure to return
the motorcycle to Emelina after his working hours from 8:00 a.m. to 5:00
p.m.46 constitutes "unlawful taking". Emelina lodged a complaint against appellant with
the PNP-CIDG for the loss of the service motorcycle 47 confirming that appellant's
continued possession thereof is without her authority.

The subsequent recovery of the stolen motorcycle will not preclude the presence of
the third element. Actual gain is irrelevant as the important consideration is the intent to
gain or animus lucrandi.48 Intent to gain is an internal act presumed from the unlawful
taking49 of the motor vehicle which the appellant failed to overcome with evidence to the
contrary. Verily, the mere use of the thing unlawfully taken constitutes gain. 50
cralawrednad

Appellant is thus guilty of the crime of carnapping under R.A. No. 6539.

2
Casanas v. People, G.R. No. 223833, 11 December 2017

Facts:

The prosecution alleged that at around 9 o'clock in the evening of August 14, 2012,
private complainant Christopher Calderon (Calderon) was about to go inside the public
market in Marilao, Bulacan when a passenger arrived and wanted to ride his tricycle,
made up of a Racal motorcycle with plate number 7539IJ (subject motorcycle) and a
sidecar.7 Casanas volunteered to drive Calderon's tricycle for the passenger, to which
Calderon obliged. However, Casanas no longer returned the tricycle to Calderon,
prompting the latter to report the incident to police authorities in the afternoon of the
next day.8

A few days later, or on August 19, 2012, the Valenzuela Police Station received a report
that a suspected stolen motorcycle was being sold in Karuhatan, Valenzuela City. 9 When
Police Officer 2 Harvy Arañas (PO2 Arañas) and Police Officer 1 Elbern Chad De Leon (PO1
De Leon) responded to the report, they saw a man, later on identified as Casanas,
standing beside what turned out to be the subject motorcycle. 10 The police officers
introduced themselves to Casanas and asked for proof of ownership of the motorcycle,
but Casanas could not provide any. PO1 De Leon then frisked Casanas and found a knife
in the latter's possession.11 Thereafter, they brought Casanas, the subject motorcycle,
and the knife to the police station. Upon further investigation, the police officers
discovered that the subject motorcycle was registered under Calderon's name. The next
day, Calderon went to the police station and recovered the subject motorcycle. 12

For his part, while Casanas admitted that Calderon owned the subject motorcycle, he
denied stealing the same. He averred that he only borrowed the subject motorcycle on
August 18, 2012, but he was unable to return it on that date as he had a drinking session
with his friends.13 The next day, he was on his way home onboard the subject motorcycle
when policemen blocked his way and forcibly took him to the police station. Thereat, a
police officer purportedly took a knife from his drawer, which led petitioner to believe that
he was being investigated and detained because of the said knife.

Ruling:

From the foregoing, it is evident that the crime of Carnapping, including all the elements
thereof - namely, that: (a) there is an actual taking of the vehicle; (b) the vehicle belongs
to a person other than the offender himself; (c) the taking is without the consent of the
owner thereof, or that the taking was committed by means of violence against or
intimidation of persons, or by using force upon things; and (d) the offender intends to
gain from the taking of the vehicle37 - did not occur in Valenzuela City, but in Marilao,
Bulacan. While the Court notes that Casanas was indeed arrested in Valenzuela City while
in the possession of the subject motorcycle, the same is of no moment, not only because
such is not an element of the crime, but more importantly, at that point in time, the crime
had long been consummated. Case law provides that '"unlawful taking'
or  apoderamiento is the taking of the motor vehicle without the consent of the owner, or
by means of violence against or intimidation of persons, or by using force upon things. It
is deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same."38

3
People vs. Nang Kay, G.R. No. L-3565, 20 April 1951

Facts:
In the Court of First Instance of Rizal, Nang Kay alias Sy Kee was charged with illegal possession of
firearms in that in his possession were found three grease guns and two Thompson Submachine guns,
and empty magazines, without the necessary license. In court he appeared without counsel and upon
being arraigned, he pleaded guilty. He was sentenced to imprisonment for five (5) years and one (1)
day, with the accessories of the law, and to pay costs. The firearms and ammunition in question were
ordered confiscated in favor of the Government. He now appeals to this Court on the ground that the
trial court failed to inform him at the arraignment of his right to be assisted by counsel. The Solicitor
General also questions the correctness of the penalty imposed, expressing the opinion and making the
recommendation that the law on indeterminate sentence should have been applied.

Ruling:

As to the application of the law on indeterminate sentence, the Solicitor General merely says that the
trial court failed to apply said law, and he recommends that it be applied, without giving his reasons for
said recommendation. We agree with the Solicitor General that the letter of the law on indetermine
sentence (Act No. 4103) as amended by Act No. 4225, particularly the latter part of section 1 thereof,
supports his contention, the offense in the present case being penalized by special law. Said legal
provision states that:

. . . and if the offense is punished by any other law (not the Revised Penal Code or its
amendments), the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same.

Section 2692 of the Revised Administrative Code as amended by Commonwealth Act 56 and Republic
Act No. 4 penalizes the criminal act of the appellant with imprisonment of not less than five (5) years
nor more than ten (10)years. So, if we applied the law on indeterminate sentence, the penalty as
recommended by the Solicitor General would be not less than five (5) years and not more than a
period exceeding ten (10) years. That penalty could hardly be regarded as favorable to the accused,
considering his plea of guilty. We should not lose sight of the fact that the law on indeterminate
sentence as a rule is intended to favor the defendant ina criminal case particularly to shorten his term
of imprisonment, depending upon his behavior and his physical, mental, and moral record as a
prisoner, to be determined by the Board of Indeterminate Sentence. Upon favorable recommendation
by that Board, the prisoner may be released on parole upon the expiration of his minimum sentence. In
fact the Governor General in his message published in 31 Off. Gaz., No. 92, August 3, 1933, issued in
connection with the promulgation of the present law on indeterminate sentence, said that one of the
purposes of the law was to prevent unnecessary and excessive deprivation of personal liberty and
economic usefulness.

Under the special law on illegal possession of firearms applicable to this case, already referred to, if we
had no law on indeterminate sentence in this jurisdiction, considering the plea of guilty entered by the
appellant, the trial court could well and lawfully have given him a prison sentence of five (5) years. If we
are now to apply the law on indeterminate sentence in the instant case, the prison term would to be
more than five (5) years for the reason that the minimum could not be less than five (5) years and the
maximum necessarily would have to be more than five (5) years but not more than ten (10) years. That
would certainly be not in accordance with the purpose of the law on indeterminate sentence; in fact it
would run counter to its spirit.

4
Batistis vs. People, G.R. No. 181571, 16 December 2009

Facts:

The Fundador trademark characterized the brandy products manufactured by Pedro Domecq, S.A. of
Cadiz, Spain.3 It was duly registered in the Principal Register of the Philippines Patent Office on July
12, 1968 under Certificate of Registration No. 15987, 4 for a term of 20 years from November 5, 1970.
The registration was renewed for another 20 years effective November 5, 1990. 5

Allied Domecq Philippines, Inc., a Philippine corporation exclusively authorized 6 to

distribute Fundador brandy products imported from Spain wholly in finished form, 7 initiated this case
against Batistis. Upon its request, agents of the National Bureau of Investigation (NBI) conducted a
test-buy in the premises of Batistis, and thereby confirmed that he was actively engaged in the
manufacture, sale and distribution of counterfeit Fundador brandy products.8 Upon application of the
NBI agents based on the positive results of the test-buy,9 Judge Antonio M. Eugenio, Jr. of the Manila
RTC issued on December 20, 2001 Search Warrant No. 01-2576, 10 authorizing the search of the
premises of Batistis located at No.1664 Onyx St., San Andres Bukid, Sta. Ana, Manila. The search
yielded 20 empty Carlos I bottles, 10 empty bottles of Black Label whiskey, two empty bottles of
Johnny Walker Swing, an empty bottle of Remy Martin XO, an empty bottle of Chabot, 241 empty
Fundador bottles, 163 boxes of Fundador, a half sack of Fundador plastic caps, two filled bottles of
Fundador brandy, and eight cartons of empty Jose Cuervo bottles.11

The Office of the City Prosecutor of Manila formally charged Batistis in the RTC in Manila with two
separate offenses, namely, infringement of trademark and unfair competition, through the following
information, to wit:

Ruling:

Penalty Imposed should be an

Indeterminate Penalty and Fine

Section 170 of the Intellectual Property Code provides the penalty for infringement of trademark, to wit:

Section 170. Penalties. - Independent of the civil and administrative sanctions imposed by law, a
criminal penalty of imprisonment from two (2) years to five (5) years and a fine ranging from Fifty
thousand pesos (P50,000) to Two hundred thousand pesos(P200,000), shall be imposed on any
person who is found guilty of committing any of the acts mentioned in Section 155, Section 168 and
Subsection 169.1. (Arts. 188 and 189, Revised Penal Code).

The CA affirmed the decision of the RTC imposing the "the penalty of imprisonment of TWO (2)
YEARS and to pay a fine of FIFTY THOUSAND (₱50,000.00) PESOS."

We rule that the penalty thus fixed was contrary to the Indeterminate Sentence Law, 26 as amended by
Act No. 4225. We modify the penalty.

5
Section 1 of the Indeterminate Sentence Law, as amended, provides:

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the said Code, and the minimum which shall be within the range of the
penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any
other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same.

The straight penalty the CA imposed was contrary to the Indeterminate Sentence Law, whose Section
1 requires that the penalty of imprisonment should be an indeterminate sentence. According to
Spouses Bacar v. Judge de Guzman,Jr.,27 the imposition of an indeterminate sentence with maximum
and minimum periods in criminal cases not excepted from the coverage of the Indeterminate Sentence
Law pursuant to its Section 228 is mandatory, viz:

The need for specifying the minimum and maximum periods of the indeterminate sentence is to
prevent the unnecessary and excessive deprivation of liberty and to enhance the economic usefulness
of the accused, since he may be exempted from serving the entire sentence, depending upon his
behavior and his physical, mental, and moral record. The requirement of imposing an indeterminate
sentence in all criminal offenses whether punishable by the Revised Penal Code or by special laws,
with definite minimum and maximum terms, as the Court deems proper within the legal range of the
penalty specified by the law must, therefore, be deemed mandatory.

Indeed, the imposition of an indeterminate sentence is mandatory. For instance, in Argoncillo v. Court
of Appeals,29 three persons were prosecuted for and found guilty of illegal fishing (with the use of
explosives) as defined in Section 33, Presidential Decree No. 704, as amended by Presidential Decree
No. 1058, for which the prescribed penalty was imprisonment from 20 years to life imprisonment. The
trial court imposed on each of the accused a straight penalty of 20 years imprisonment, and the CA
affirmed the trial court. On appeal, however, this Court declared the straight penalty to be erroneous,
and modified it by imposing imprisonment ranging from 20 years, as minimum, to 25 years, as
maximum.

We are aware that an exception was enunciated in People v. Nang Kay,30 a prosecution for illegal
possession of firearms punished by a special law (that is, Section 2692, Revised Administrative Code,
as amended by Commonwealth Act 56 and Republic Act No. 4) with imprisonment of not less than five
years nor more than ten years. There, the Court sustained the straight penalty of five years and one
day imposed by the trial court (Court of First Instance of Rizal) because the application of the
Indeterminate Sentence Law would be unfavorable to the accused by lengthening his prison sentence.
Yet, we cannot apply the Nang Kay exception herein, even if this case was a prosecution under a
special law like that in Nang Kay. Firstly, the trial court in Nang Kay could well and lawfully have given
the accused the lowest prison sentence of five years because of the mitigating circumstance of his
voluntary plea of guilty, but, herein, both the trial court and the CA did not have a similar circumstance
to justify the lenity towards the accused. Secondly, the large number of Fundador articles confiscated
from his house (namely, 241 empty bottles of Fundador, 163 Fundador boxes, a half sack full of
Fundador plastic caps, and two filled bottles of Fundador Brandy) clearly demonstrated that Batistis
had been committing a grave economic offense over a period of time, thereby deserving for him the
indeterminate, rather than the straight and lower, penalty.

6
Guinhawa vs. People, G.R. No. 162822, 25 August 2005

Facts:
On February 14, 1996, Josephine Silo filed a criminal complaint for violation of paragraph 1, Article 318
of the Revised Penal Code against Guinhawa in the Office of the City Prosecutor of Naga City. After
the requisite investigation, an Information was filed against Guinhawa in the Municipal Trial Court
(MTC) of Naga City. The inculpatory portion reads:

Ruling:

The MTC sentenced the petitioner to suffer imprisonment of from two months and one day, as
minimum, to four months of arresto mayor, as maximum. The CA affirmed the penalty imposed by the
trial court. This is erroneous. Section 2 of Act 4103, as amended, otherwise known as the
Indeterminate Sentence Law, provides that the law will not apply if the maximum term of imprisonment
does not exceed one year:

SEC. 2. This Act shall not apply to persons convicted of offenses punished with death penalty or life-
imprisonment; to those convicted of treason, conspiracy or proposal to commit treason; to those
convicted of misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to
those who are habitual delinquents; to those who shall have escaped from confinement or evaded
sentence; to those who having been granted conditional pardon by the Chief Executive shall have
violated the terms thereof; to those whose maximum term of imprisonment does not exceed one year,
not to those already sentenced by final judgment at the time of approval of this Act, except as provided
in Section 5 hereof. (As amended by Act No. 4225.)

In this case, the maximum term of imprisonment imposed on the petitioner was four months and one
day of arresto mayor. Hence, the MTC was proscribed from imposing an indeterminate penalty on the
petitioner. An indeterminate penalty may be imposed if the minimum of the penalty is
one year or less, and the maximum exceeds one year. For example, the trial court may impose an
indeterminate penalty of six months of arresto mayor, as minimum, to two years and four months
of prision correccional, as maximum, since the maximum term of imprisonment it imposed exceeds one
year. If the trial court opts to impose a penalty of imprisonment of one year or less, it should not impose
an indeterminate penalty, but a straight penalty of one year or less instead. Thus, the petitioner may be
sentenced to a straight penalty of one year, or a straight penalty of less than one year, i.e., ten months
or eleven months. We believe that considering the attendant circumstances, a straight penalty of
imprisonment of six months is reasonable.

7
Hernan v. Sandiganbayan, G.R. No. 217874, 05 December 2017

Facts:

In October 1982, petitioner Ophelia Hernan joined the Department of Transportation and
Communication (DOTC), Cordillera Administrative Region (CAR) in Baguio City wherein she served as
an accounting clerk. In September 1984, she was promoted to the position of Supervising Fiscal Clerk
by virtue of which she was designated as cashier, disbursement and collection officer.  As such,
3

petitioner received cash and other collections from customers and clients for the payment of
telegraphic transfers, toll foes, and special message fees. The collections she received were deposited
at the bank account of the DOTC at the Land Bank of the Philippines (LBP), Baguio City Branch. 4

On December 17, 1996, Maria Imelda Lopez, an auditor of the Commission on Audit (COA), conducted
a cash examination of the accounts handled by petitioner as instructed by her superior, Sherelyn
Narag. As a result, Lopez came across deposit slips dated September 19, 1996 and November 29,
1996 bearing the amounts of ₱11,300.00 and ₱81,348.20, rcspectively.  Upon close scrutiny, she
5

noticed that said deposit slips did not bear a stamp of receipt by the LBP nor was it machine validated.
Suspicious about what she found, she and Narag verified all the reports and other documents turned-
over to them by petitioner.  On the basis of said findings, Narag sent a letter to the LBP to confirm the
6

remittances made by petitioner. After adding all the deposits made and upon checking with the teller's
blotter, Nadelline Orallo, the resident auditor of LBP, found that no deposits were made by petitioner
for the account of DOTC on September 19, 1996 for the amount of ₱11,300.00 and November 29,
1996 for the amount of ₱81,340.20. 7

Thereafter, the LBP's officer-in-charge, Rebecca R. Sanchez, instructed the bank's teller, Catalina
Ngaosi, to conduct their own independent inquiry. It was discovered that on September 19, 1996, the
only deposit in favor of the DOTC was that made by its Ifugao office in the Lagawe branch of the
LBP.  This prompted Lopez to write to petitioner informing her that the two (2) aforesaid remittances
8

were not acknowledged by the bank. The auditors then found that petitioner duly accounted for the
₱81,348.20 remittance but not for the ₱11,300.00. Dissatisfied with petitioner's explanation as to the
whereabouts of the said remittance, Narag reported the matter to the COA Regional Director who, in
turn wrote to the LBP for confirmation. The LBP then denied receiving any ₱11,300.00 deposit on
September 19, 1996 from petitioner for the account of the DOTC.  Thus, the COA demanded that she
9

pay the said amount. Petitioner, however, refused. Consequently, the COA filed a complaint for
malversation of public funds against petitioner with the Office of the Ombudsman for Luzon which, after
due investigation, recommended her indictment for the loss of ₱11,300.00.  Accordingly, petitioner was
10

charged before the RTC of Baguio City in an Information, the accusatory portion of which reads:

That on or about September 16, 1996, or sometime prior or subsequent thereto, in the City of Baguio,
Philippines, and within the jurisdiction of this Honourable Court, the above-named accused, a public
officer, being then the Disbursing Officer of the Department of Transportation and Communications,
Baguio City, and as such an accountable officer, entrusted with and responsible for the amount of ₱1
1,300.00 which accused received and collected for the DOTC, and intended for deposit under the
account of DOTC with the Land Bank of the Philippines-Baguio City, by reason of her position, while in
the performance of her official functions, taking advantage of her position, did then and there, wilfully,
feloniously, and unlawfully misappropriate or consent, or through abandonment or negligence, permit
other persons to take such amount of ₱11,300.00 to the damage and prejudice of the government.

8
Ruling:
1. The penalty of pnswn correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation docs not exceed Forty thousand pesos
(₱40,000.00).

xxxx

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the
property embezzled.

Pursuant to the aforequoted provision, therefore, We have here a novel situation wherein the judgment
convicting the accused, petitioner herein, has already become final and executory and yet the penalty
imposed thereon has been reduced by virtue of the passage of said law. Because of this, not only must
petitioner's sentence be modified respecting the settled rule on the retroactive effectivity of laws, the
sentencing being favorable to the accused,  she may even apply for probation,  as long as she does
56 57

not possess any ground for disqualification,  in view of recent legislation on probation, or R.A. No.
58

10707 entitled An Act Amending Presidential Decree No. 968, otherwise known as the "Probation Law
of 1976," As Amended. allowing an accused to apply for probation in the event that she is sentenced to
serve a maximum term of imprisonment of not more than six (6) years 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.59

Thus, in order to effectively avoid any injustice that petitioner may suffer as well as a possible
multiplicity of suits arising therefrom, the Court deems it proper to reopen the instant case and recall
the Entry of Judgment dated June 26, 2013 of the Sandiganbayan, which imposed the penalty of six
(6) years and one (1) day of prision mayor, as minimum, to eleven (11) years, six (6) months, and
twenty-one (21) days of prision mayor, as maximum. Instead, since the amount involved herein is
₱11,300.00, which does not exceed ₱40,000.00, the new penalty that should be imposed is prision
correccional in its medium and maximum periods, which has a prison term of two (2) years, four (4)
months, and one (1) day, to six (6) years. The Court, however, takes note of the presence of the
mitigating circumstance of voluntary surrender appreciated by the Sandiganbayan in favor of
petitioner.  Hence, taking into consideration the absence of any aggravating circumstance and the
60

presence of one (1) mitigating circumstance, the range of the penalty that must be imposed as the
maximum term should be prision correccional medium to prision correccional maximum in its minimum
period, or from two (2) years, four (4) months, and one (1) day, to three (3) years, six (6) months, and
twenty (20) days, in accordance with Article 64  of the RPC. Applying the Indeterminate Sentence Law,
61

the range of the minimum term that should be imposed upon petitioners is anywhere within the period
of arresto mayor, maximum to prision correccional minimum with a range of four (4) months and one
(1) day to two (2) years and four (4) months. Accordingly, petitioner is sentenced to suffer the
indeterminate penalty of six (6) months of arresto mayor, as minimum, to three (3) years, six (6)
months, and twenty (20) days prision correccional, as maximum.

9
On a final note, judges, public prosecutors, public attorneys, private counsels, and such other officers
of the law are hereby advised to similarly apply the provisions of RA No. 10951 whenever it is, by
reason of justice and equity, called for by the facts of each case. Hence, said recent legislation shall
find application in cases where the imposable penalties of the affected crimes such as theft, qualified
theft, estafa, robbery with force upon things, malicious mischief, malversation, and such other crimes,
the penalty of which is dependent upon the value of the object in consideration thereof, have been
reduced, as in the case at hand, taking into consideration the presence of existing circumstances
attending its commission. For as long as it is favorable to the accused, said recent legislation shall find
application regardless of whether its effectivity comes after the time when the judgment of conviction is
rendered and even if service of sentence has already begun. The accused, in these applicable
instances, shall be entitled to the benefits of the new law warranting him to serve a lesser sentence, or
to his release, if he has already begun serving his previous sentence, and said service already
accomplishes the term of the modified sentence. In the latter case, moreover, the Court, in the interest
of justice and expediency, further directs the appropriate filing of an action before the Court that seeks
the reopening of the case rather than an original petition filed for a similar purpose.

Indeed, when exceptional circumstances exist, such as the passage of the instant amendatory law
imposing penalties more lenient and favorable to the accused, the Court shall not hesitate to direct the
reopening of a final and immutable judgment, the objective of which is to correct not so much the
findings of guilt but the applicable penalties to be imposed.

Henceforth: (1) the Directors of the National Penitentiary and Correctional Institution for Women are
hereby ordered to determine if there are accused serving final sentences similarly situated as the
accused in this particular case and if there are, to coordinate and communicate with the Public
Attorney's Office and the latter, to represent and file the necessary pleading before this Court in behalf
of these convicted accused in light of this Court's pronouncement; (2) For those cases where the
accused are undergoing preventive imprisonment, either the cases against them are non-bailable or
cannot put up the bail in view of the penalties imposable under the old law, their respective counsels
are hereby ordered to file the necessary pleading before the proper courts, whether undergoing trial in
the RTC or undergoing appeal in the appellate courts and apply for bail, for their provisional liberty; (3)
For those cases where the accused are undergoing preventive imprisonment pending trial or appeal,
their respective counsels are hereby ordered to file the necessary pleading if the accused have already
served the minimum sentence of the crime charged against them based on the penalties imposable
under the new law, R.A. No. 10951, for their immediate release in accordance with A.M. No. 12-11-2-
SC or the Guidelines For Decongesting Holding Jails By Enforcing The Rights Of Accused Persons To
Bail And To Speedy Trial; 62 and (4) Lastly, all courts, including appellate courts, are hereby ordered
to give priority to those cases covered by R.A. No. 10951 to avoid any prolonged imprisonment.

10
In re: Rolando Elbanbuena y Marfil, G.R. No. 237721, 31 July 2018

Facts:

Petitioner Elbanbuena worked as a Disbursing Officer of Alingilan National High School in

Alingilan, Bacolod. He was charged with four counts of malversation of public funds
through falsification of a public document under Articles 217 and 171 in relation to Article
48 of the Revised Penal Code (RPC). After trial, Elbanbuena was found guilty beyond
reasonable doubt of the crimes charged in the Information.

Since Elbanbuena did not appeal the ruling, it became final and executory on August 10,
2000.6 On January 9, 2003, Elbanbuena started serving his sentence at the New Bilibid
Prison in Muntinlupa City.7

On August 29, 2017, RA No. 10951 was promulgated. It amended Act No. 3815,
otherwise known as the Revised Penal Code, and reduced the penalties for certain crimes.
Pertinently, Section 40 of RA No. 10951 provides:

1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed Forty
thousand pesos (P40,000).

2. The penalty of prision mayor in its minimum and medium periods, if the
amount involved is more than Forty thousand pesos (P40,000) but does not
exceed One million two hundred thousand pesos (P1,200,000).

On December 5, 2017, this Court issued its ruling in Hernan v. Sandiganbayan.8 There,

the Court held:

Hence, this petition which seeks, among others, the modification, in conformity with RA
No. 10951, of the Decision10 dated July 5, 2000 rendered by Branch 41 of the Regional
Trial Court of Bacolod City and, pursuant thereto, Elbanbuena's immediate release from
confinement.

On July 4, 2018, the OSG filed its
petitioners may invoke RA No. 10951 to
some of the crimes for which they are
took the position that Elbanbuena (and
be immediately released at this point:
consolidated comment wherein it agreed that
seek a modification/reduction of the penalties for
presently serving sentence. The OSG, however,
the other petitioners similarly situated) may not

12. x x x While R.A. No. 10951 did reduce the imposable penalties for petitioners' crimes
under the RPC, the reduced penalties to be actually imposed for these crimes have yet to
be fixed by a court of competent jurisdiction.

13. The determination of whether petitioners are now entitled to be released requires that
the court exercising jurisdiction over this petition first: (a) fix the new penalties for the
crimes for which petitioners are presently serving sentence, as provided under R.A. No.
10951; and, thereafter (b) ascertain whether petitioners have indeed fully served their
respective sentences based on such new penalties. Both have yet to be made. 12 (Italics in
the original.)

11
However, and especially in view of the anticipated influx of similar petitions, 13 the Court,
in the interest of justice and efficiency, resolves to issue the following guidelines: 14

I.
Scope.

These guidelines shall govern the procedure for actions seeking (1) the modification,
based on the amendments introduced by RA No. 10951, of penalties imposed by final
judgments; and, (2) the immediate release of the petitioner-convict on account of full
service of the penalty/penalties, as modified.
II.
Who may file.

The Public Attorney's Office, the concerned inmate, or his/her counsel/representative,

may file the petition.
III.
Where to file.

The petition shall be filed with the Regional Trial Court exercising territorial jurisdiction
over the locality where the petitioner-convict is confined. The case shall be raffled and
referred to the branch to which it is assigned within three (3) days from the filing of the
petition.
IV.
Pleadings.

(A)
Pleadings allowed. - The only pleadings allowed to be filed are the petition and the
comment from the OSG. No motions for extension of time, or other dilatory motions for
postponement, shall be allowed. The petition must contain a certified true copy of the
Decision sought to be modified and, where applicable, the mittimus and/or a certification
from the Bureau of Corrections as to the length of the sentence already served by
petitioner-convict.

(B)
Verification.- The petition must be in writing and verified by the petitioner-convict
himself.
V.
Comment by the OSG.

Within ten (10) days from notice, the OSG shall file its comment to the petition.
VI.
Effect of failure to file comment.

Should the OSG fail to file the comment within the period provided, the court, motu
proprio, or upon motion of the petitioner-convict, shall render judgment as may be
warranted.
VII.
Judgment of the court.

To avoid any prolonged imprisonment, the court shall promulgate judgment no later than
ten (10) calendar days after the lapse of the period to file comment. The judgment shall
set forth the following:

a.
The penalty/penalties imposable in accordance with RA No. 10951;
12
b.
Where proper, the length of time the petitioner-convict has been in confinement (and
whether time allowance for good conduct should be allowed); and

c.
Whether the petitioner-convict is entitled to immediate release due to complete service of
his sentence/s, as modified in accordance with RA No. 10951.

The judgment of the court shall be immediately executory, without prejudice to the filing
before the Supreme Court of a special civil action under Rule 65 of the Revised Rules of
Court where there is showing of grave abuse of discretion amounting to lack or excess of
jurisdiction.
VIII.
Applicability of the regular rules.

The Rules of Court shall apply to the special cases herein provided in a suppletory
capacity insofar as they are not inconsistent therewith.

WHEREFORE, premises considered, the petition is GRANTED. The Decision dated July 5,
2000 in Criminal Cases Nos. 95-17263, 95-17264, 95-17265, and 95-17266 is
hereby REMANDED to the Regional Trial Court in Muntinlupa City for the determination
of: (1) the proper penalty/penalties in accordance with RA No. 10951; and (2) whether
petitioner ROLANDO ELBANBUENA y MARFIL is entitled to immediate release on
account of full service of his sentences, as modified.

13
Colinares v. People, G.R. No. 182748, 13 December 2011

Facts:

On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of frustrated
homicide and sentenced him to suffer imprisonment from two years and four months of prision
correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the
maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for
probation.

Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking
conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty
imposed on him. The CA entirely affirmed the RTC decision but deleted the award for lost income in
the absence of evidence to support it.3 Not satisfied, Arnel comes to this Court on petition for review.

In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to
submit their respective positions on whether or not, assuming Arnel committed only the lesser crime of
attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor, as
minimum, to two years and four months of prision correccional, as maximum, he could still apply for
probation upon remand of the case to the trial court.

Both complied with Arnel taking the position that he should be entitled to apply for probation in case the
Court metes out a new penalty on him that makes his offense probationable. The language and spirit of
the probation law warrants such a stand. The Solicitor General, on the other hand, argues that under
the Probation Law no application for probation can be entertained once the accused has perfected his
appeal from the judgment of conviction.

Issue:

Given a finding that Arnel is entitled to conviction for a lower offense and a reduced probationable
penalty, whether or not he may still apply for probation on remand of the case to the trial court.

Ruling:

Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the
judgment of the RTC convicting him for frustrated homicide.

But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the
maximum of the penalty imposed on him should be lowered to imprisonment of four months of arresto
mayor, as minimum, to two years and four months of prision correccional, as maximum. With this new
penalty, it would be but fair to allow him the right to apply for probation upon remand of the case to the
RTC.

Some in the Court disagrees. They contend that probation is a mere privilege granted by the state only
to qualified convicted offenders. Section 4 of the probation law (PD 968) provides: "That no application
for probation shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction."15 Since Arnel appealed his conviction for frustrated homicide, he should be
deemed permanently disqualified from applying for probation.

14
But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right to
such privilege; he certainly does not have. What he has is the right to apply for that privilege. The Court
finds that his maximum jail term should only be 2 years and 4 months. If the Court allows him to apply
for probation because of the lowered penalty, it is still up to the trial judge to decide whether or not to
grant him the privilege of probation, taking into account the full circumstances of his case.

Secondly, it is true that under the probation law the accused who appeals "from the judgment of
conviction" is disqualified from availing himself of the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to Arnel: one, a conviction for frustrated homicide by the
regional trial court, now set aside; and, two, a conviction for attempted homicide by the Supreme Court.

If the Court chooses to go by the dissenting opinion’s hard position, it will apply the probation law on
Arnel based on the trial court’s annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him. More, the Supreme Court’s
judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the trial
court’s judgment—even if this has been found in error. And, worse, Arnel will now also be made to pay
for the trial court’s erroneous judgment with the forfeiture of his right to apply for probation. Ang kabayo
ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip). Where is
justice there?

The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would
dilute the ruling of this Court in Francisco v. Court of Appeals 16 that the probation law requires that an
accused must not have appealed his conviction before he can avail himself of probation. But there is a
huge difference between Francisco and this case.

In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty of grave oral
defamation and sentenced him to a prison term of one year and one day to one year and eight months
of prision correccional, a clearly probationable penalty. Probation was his to ask! Still, he chose to
appeal, seeking an acquittal, hence clearly waiving his right to apply for probation. When the acquittal
did not come, he wanted probation. The Court would not of course let him. It served him right that he
wanted to save his cake and eat it too. He certainly could not have both appeal and probation.

The Probation Law, said the Court in Francisco, requires that an accused must not have appealed his
conviction before he can avail himself of probation. This requirement "outlaws the element of
speculation on the part of the accused—to wager on the result of his appeal—that when his conviction
is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence
inevitable, he now applies for probation as an ‘escape hatch’ thus rendering nugatory the appellate
court’s affirmance of his conviction."17

Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for
probation. He did not have a choice between appeal and probation. He was not in a position to say,
"By taking this appeal, I choose not to apply for probation." The stiff penalty that the trial court imposed
on him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation under this
Court’s greatly diminished penalty will not dilute the sound ruling in Francisco. It remains that those
who will appeal from judgments of conviction, when they have the option to try for probation, forfeit
their right to apply for that privilege.

Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him.
He claimed that the evidence at best warranted his conviction only for attempted, not frustrated,
homicide, which crime called for a probationable penalty. In a way, therefore, Arnel sought from the
beginning to bring down the penalty to the level where the law would allow him to apply for probation.

In a real sense, the Court’s finding that Arnel was guilty, not of frustrated homicide, but only of
attempted homicide, is an original conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have found him guilty of the correct
offense and imposed on him the right penalty of two years and four months maximum.  This would
lavvphil

have afforded Arnel the right to apply for probation.

15
The Probation Law never intended to deny an accused his right to probation through no fault of his.
The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not
served by a harsh and stringent interpretation of the statutory provisions. 18 As Justice Vicente V.
Mendoza said in his dissent in Francisco, the Probation Law must not be regarded as a mere privilege
to be given to the accused only where it clearly appears he comes within its letter; to do so would be to
disregard the teaching in many cases that the Probation Law should be applied in favor of the accused
not because it is a criminal law but to achieve its beneficent purpose. 19

One of those who dissent from this decision points out that allowing Arnel to apply for probation after
he appealed from the trial court’s judgment of conviction would not be consistent with the provision of
Section 2 that the probation law should be interpreted to "provide an opportunity for the reformation of
a penitent offender." An accused like Arnel who appeals from a judgment convicting him, it is claimed,
shows no penitence.

This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however, it
convicted Arnel of the wrong crime, frustrated homicide, that carried a penalty in excess of 6 years.
How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not
commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months.

Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it would
be sending him straight behind bars. It would be robbing him of the chance to instead undergo
reformation as a penitent offender, defeating the very purpose of the probation law.

At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct
penalty of two years and four months maximum, he would have had the right to apply for probation. No
one could say with certainty that he would have availed himself of the right had the RTC done right by
him. The idea may not even have crossed his mind precisely since the penalty he got was not
probationable.

The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for
probation when the new penalty that the Court imposes on him is, unlike the one erroneously imposed
by the trial court, subject to probation?

Dissent:

However, as to the question relating to the application of the Probation Law in this case, I respectfully
dissent to the majority opinion.

Probation is not a right granted to a convicted offender. Probation is a special privilege granted by the
State to a penitent qualified offender,1 who does not possess the disqualifications under Section 9 of
Presidential Decree (P.D.) No. 968, 2 otherwise known as the Probation Law of 1976. Likewise, the
Probation Law is not a penal law for it to be liberally construed to favor the accused. 3

In the American law paradigm, probation is considered as an act of clemency and grace, not a matter
of right.4 It is a privilege granted by the State, not a right to which a criminal defendant is entitled. 5 In
the recent case of City of Aberdeen v. Regan,6 it was pronounced that:

The granting of a deferred sentence and probation, following a plea or verdict of guilty, is
a rehabilitative measure and, as such, is not a matter of right but is a matter of grace, privilege, or
clemency granted to the deserving.7

In this jurisdiction, the wisdom behind the enactment of our own Probation Law, as outlined in the said
law, reads:

16
 (a) promote the correction and rehabilitation of an offender by providing him with individualized
treatment;

(b) provide an opportunity for the reformation of a penitent offender which might be less
probable if he were to serve a prison sentence; and

(c) prevent the commission of offenses.8

Originally, P.D. No. 9689 allowed the filing of an application for probation even if an appeal had been
perfected by the convicted offender under Section 4, thus:

Section 4. Grant of Probation. — Subject to the provisions of this Decree, the court may, after it
shall have convicted and sentenced a defendant and upon application at any time of said
defendant, suspend the execution of said sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court, with notice to the appellate court if an
appeal has been taken from the sentence of conviction. The filing of the application shall be
deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal.

An order granting or denying probation shall not be appealable. 10

Thereafter, the filing of an application for probation pending appeal was still allowed when Section 4 of
P.D. No. 968 was amended by P.D. No. 1257.11

However, with the subsequent amendment of Section 4 of P.D. No. 968 by P.D. No. 1990, 12 the
application for probation is no longer allowed if the accused has perfected an appeal from the judgment
of conviction. Section 4 of the Probation Law now reads:

Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it shall
have convicted and sentenced a defendant and upon application by said defendant within the period
for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation
for such period and upon such terms and conditions as it may deem best; Provided, that no application
for probation shall be entertained or granted if the defendant has perfected an appeal from the
judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be deemed a
waiver of the right to appeal.

An order granting or denying probation shall not be appealable. 13

The reason for the disallowance is stated in the preamble of P.D. No. 1990, thus

Verily, Section 4 of the Probation Law provides that the application for probation must be filed with the
trial court within the 15-day period for perfecting an appeal. The need to file it within such period is
intended to encourage offenders, who are willing to be reformed and rehabilitated, to avail themselves
of probation at the first opportunity.18 If the application for probation is filed beyond the 15-day period,
then the judgment becomes final and executory and the lower court can no longer act on the
application for probation. On the other hand, if a notice of appeal is perfected, the trial court that
rendered the judgment of conviction is divested of any jurisdiction to act on the case, except the
execution of the judgment when it has become final and executory.

In view of the provision in Section 4 of the Probation Law that "no application for probation shall be
entertained or granted if the defendant has perfected an appeal from the judgment of conviction,"
17
prevailing jurisprudence19 treats appeal and probation as mutually exclusive remedies because the law
is unmistakable about it.20

However, it has been proposed that an appeal should not bar the accused from applying for probation
if the appeal is solely to reduce the penalty to within the probationable limit, as this is equitable.

In this regard, an accused may be allowed to apply for probation even if he has filed a notice of appeal,
provided that his appeal is limited to the following grounds:

1. When the appeal is merely intended for the correction of the penalty imposed by the lower
court, which when corrected would entitle the accused to apply for probation; and

2. When the appeal is merely intended to review the crime for which the accused was
convicted and that the accused should only be liable to the lesser offense which is necessarily
included in the crime for which he was originally convicted and the proper penalty imposable is
within the probationable period.

In both instances, the penalty imposed by the trial court for the crime committed by the accused is
more than six years; hence, the sentence disqualifies the accused from applying for probation. Thus,
the accused should be allowed to file an appeal under the aforestated grounds to seek a review of the
crime and/or penalty imposed by the trial court. If, on appeal, the appellate court finds it proper to
modify the crime and/or the penalty imposed, and the penalty finally imposed is within the
probationable period, then the accused should be allowed to apply for probation.

In addition, before an appeal is filed based on the grounds enumerated above, the accused should first
file a motion for reconsideration of the decision of the trial court anchored on the above-stated grounds
and manifest his intent to apply for probation if the motion is granted. The motion for reconsideration
will give the trial court an opportunity to review and rectify any errors in its judgment, while the
manifestation of the accused will immediately show that he is agreeable to the judgment of conviction
and does not intend to appeal from it, but he only seeks a review of the crime and/or penalty imposed,
so that in the event that the penalty will be modified within the probationable limit, he will apply for
probation.

What Section 4 of the Probation Law prohibits is an appeal from the judgment of conviction, thus:

Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it shall
have convicted and sentenced a defendant and upon application by said defendant within the period
for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation
for such period and upon such terms and conditions as it may deem best; Provided, that no application
for probation shall be entertained or granted if the defendant has perfected the appeal from
the judgment of conviction.21

An appeal from the judgment of conviction involves a review of the merits of the case and the
determination of whether or not the accused is entitled to acquittal. However, under the recommended
grounds for appeal which were enumerated earlier, the purpose of the appeal is not to question the
judgment of conviction, but to question only the propriety of the sentence, particularly the penalty
imposed, as the accused intends to apply for probation. If the appellate court finds it proper to modify
the sentence, and the penalty finally imposed by the appellate court is within the probationable period,
the accused should be allowed to apply for probation after the case is remanded to the trial court for
execution.

It is believed that the recommended grounds for appeal do not contravene Section 4 of the Probation
Law, which expressly prohibits only an appeal from the judgment of conviction. In such instances, the
ultimate reason of the accused for filing the appeal based on the aforestated grounds is to determine
whether he may avail of probation based on the review by the appellate court of the crime and/or
penalty imposed by the trial court. Allowing the aforestated grounds for appeal would give a qualified
convicted offender the opportunity to apply for probation if his ground for appeal is found to be
18
meritorious by the appellate court, thus, serving the purpose of the Probation Law to promote the
reformation of a penitent offender outside of prison.

On the other hand, probation should not be granted to the accused in the following instances:

1. When the accused is convicted by the trial court of a crime where the penalty imposed is
within the probationable period or a fine, and the accused files a notice of appeal; and

2. When the accused files a notice of appeal which puts the merits of his conviction in
issue, even if there is an alternative prayer for the correction of the penalty imposed by the trial
court or for a conviction to a lesser crime, which is necessarily included in the crime in which he
was convicted where the penalty is within the probationable period.

Both instances violate the spirit and letter of the law, as Section 4 of the Probation Law prohibits
granting an application for probation if an appeal from the sentence of conviction has been perfected
by the accused.

There is wisdom to the majority opinion, but the problem is that the law expressly prohibits the filing of
an application for probation beyond the period for filing an appeal. When the meaning is clearly
discernible from the language of the statute, there is no room for construction or interpretation. 22 Thus,
the remedy is the amendment of Section 4 of P.D. No. 968, and not adaptation through judicial
interpretation.

19
Dimakuta v. People, G.R. No. 206513, 20 October 2015

Facts:

The Court is now faced with one of the predicaments I discussed in my Dissenting and Concurring
Opinion in Colinares v. People.  The question regarding the application of the Probation Law is again
1

inescapably intertwined with the present petition. Consequently, I must reiterate my assertions and
arguments in Colinares to the case at bar.

In the present controversy, petitioner Mustapha Dimakuta y Maruhom alias Boyet was indicted for
Violation of Section 5 Paragraph (b), Article III of Republic Act (R.A.) No. 7610 or the Special
Protection of Children Against Abuse, Exploitation and Discriminatory Act. The Information reads:

After trial, the RTC promulgated its Decision  which convicted petitioner of the crime charged and
3

sentenced him to suffer an indeterminate penalty of imprisonment ranging from ten (10) years of
prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal, as maximum, with the accessory penalty of perpetual absolute disqualification. In addition,
he was directed to pay a fine of ₱20,000.00, civil indemnity of ₱25,000.00, and moral damages of
₱25,000.00. 4

On June 28, 2012, the CA rendered a Decision  adopting the recommendation of the OSG. In
6

modifying the RTC Decision, petitioner was found guilty of Acts of Lasciviousness under Article 336 of
the RPC and was sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prision correccional, as maximum. Likewise, he was
ordered to pay ₱20,000.00 as civil indemnity and ₱30,000.00 as moral damages.

Petitioner received a copy of CA Decision on July 6, 2012.  Instead of further appealing the case, he
7

filed on July 23, 2012 before the CA a manifestation with motion to allow him to apply for probation
upon remand of the case to the RTC.  Petitioner invoked the case of Colinares v. People  which
8 9

allowed petitioner therein to apply for probation after his sentence was later reduced on appeal by the
Supreme Court.

The CA issued a Resolution on September 3, 2012 denying petitioner’s manifestation with motion.10 It
was ruled that Colinares is inapplicable since petitioner therein raised as sole issue the correctness of
the penalty imposed and claimed that the evidence presented warranted only a conviction for the
lesser offense.  Instead, the appellate court viewed as appropriate the case of Lagrosa v.
1âwphi1

People,  wherein the application for probation was denied because petitioners therein put in issue on
11

appeal the merits of their conviction and did not simply assail the propriety of the penalties imposed.

Ruling:

The petition should be denied.

Verily, Section 4 of the Probation Law provides that the application for probation must be filed with the
trial court within the 15-day period for perfecting an appeal. The need to file it within such period is
intended to encourage offenders, who are willing to be reformed and rehabilitated, to avail themselves
of probation at the first opportunity.  If the application for probation is filed beyond the 15-day period,
34

then the judgment becomes final and executory and the lower court can no longer act on the
application for probation. On the other hand, if a notice of appeal is perfected, the trial court that
rendered the judgment of conviction is divested of any jurisdiction to act on the case, except the
execution of the judgment when it has become final and executory.
20
In view of the latest amendment to Section 4 of the Probation Law that "no application for probation
shall be entertained or granted if the defendant has perfected an appeal from the judgment of
conviction," prevailing jurisprudence  treats appeal and probation as mutually exclusive remedies
35

because the law is unmistakable about it.  Indeed, the law is very clear and a contrary interpretation
36

would counter its envisioned mandate. Courts have no authority to invoke "liberal interpretation" or "the
spirit of the law" where the words of the statute themselves, and as illuminated by the history of that
statute, leave no room for doubt or interpretation.  To be sure, the remedy of convicted felons who
37

want to avail of the benefits of probation even after the remedy of an appeal is to go to the Congress
and ask for the amendment of the law. To surmise a converse construal of the provision would be
dangerously encroaching on the power of the legislature to enact laws and is tantamount to judicial
legislation.

With due respect, however, to the ponente and the majority opinion in Colinares,  the application of the
38

Probation Law in the said case deserves a second hard look so as to correct the mistake in the
application of the law in that particular case and in similar cases which will be filed before the courts
and inevitably elevated to Us like this petition.

To refresh, Colinares concluded that since the trial court imposed a penalty beyond what is allowed by
the Probation Law, albeit erroneously, the accused was deprived of his choice to apply for probation
and instead was compelled to appeal the case. The reprehensible practice intended to be avoided by
the law was, therefore, not present when he appealed the trial court’s decision. Taking into account
that the accused argued in his appeal that the evidence presented against him warranted his
conviction only for attempted, not frustrated, homicide, the majority of the Court opined that the
accused had purposely sought to bring down the impossible penalty in order to allow him to apply for
probation.

It was obvious then, as it is now, that the accused in Colinares should not have been allowed the
benefit of probation. As I have previously stated and insisted upon, probation is not a right granted to a
convicted offender; it is a special privilege granted by the State to a penitent qualified offender,  who
39

does not possess the disqualifications under Section 9 of P.D. No. 968, as amended.  Likewise, the
40

Probation Law is not a penal law for it to be liberally construed to favor the accused. 41

In the American law paradigm, probation is considered as an act of clemency and grace, not a matter
of right.  It is a privilege granted by the State, not a right to which a criminal defendant is entitled.
42

As such, even in the American criminal justice model, probation should be granted only to the
deserving or, in our system, only to qualified "penitent offenders" who are willing to be reformed and
rehabilitated. Corollarily, in this jurisdiction, the wisdom behind the Probation Law is outlined in its
stated purposes, to wit:

(a) promote the correction and rehabilitation of an offender by providing him with individualized
treatment;

(b) provide an opportunity for the reformation of a penitent offender which might be less probable if
he were to serve a prison sentence; and

(c) prevent the commission of offenses. 45

As I have previously indicated in Colinares, if this Court will adopt as jurisprudential doctrine the
opinion that an accused may still be allowed to apply for probation even if he has filed a notice of
appeal, it must be categorically stated that such appeal must be limited to the following grounds:

1. When the appeal is merely intended for the correction of the penalty imposed by the lower court,
which when corrected would entitle the accused to apply for probation; and

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2. When the appeal is merely intended to review the crime for which the accused was convicted and
that the accused should only be liable to the lesser offense which is necessarily included in the crime
for which he was originally convicted and the proper penalty imposable is within the probationable
period.

In both instances, the penalty imposed by the trial court for the crime committed by the accused is
more than six years; hence, the sentence disqualifies the accused from applying for probation. The
accused should then be allowed to file an appeal under the afore-stated grounds to seek a review of
the crime and/or penalty imposed by the trial court. If, on appeal, the appellate court finds it proper to
modify the crime and/or the penalty imposed, and the penalty finally imposed is within the
probationable period, the accused should still be allowed to apply for probation.

In addition, before an appeal is filed based on the grounds enumerated above, the accused should first
file a motion for reconsideration of the decision of the trial court anchored on the above-stated grounds
and manifest his intent to apply for probation if the motion is granted. The motion for reconsideration
will give the trial court an opportunity to review and rectify any errors in its judgment, while the
manifestation of the accused will immediately show that he is agreeable to the judgment of conviction
and does not intend to appeal from it, but he only seeks a review of the crime and/or penalty imposed,
so that in the event that the penalty will be modified within the probationable limit, he will immediately
apply for probation. Without such motion for reconsideration, the notice of appeal should be denied
outright.

The notice of appeal should contain the following averments:

(1) that an earlier motion for reconsideration was filed but was denied by the trial court;

(2) that the appeal is only for reviewing the penalty imposed by the lower court or the conviction should
only be for a lesser crime necessarily included in the crime charged in the information; and

(3) that the accused-appellant is not seeking acquittal of the conviction.

To note, what Section 4 of the Probation Law prohibits is an appeal from the judgment of conviction,
which involves a review of the merits of the case and the determination of whether the accused is
entitled to acquittal. However, under the recommended grounds for appeal which were enumerated
earlier, the purpose of the appeal is not to assail the judgment of conviction but to question only the
propriety of the sentence, particularly the penalty imposed or the crime for which the accused was
convicted, as the accused intends to apply for probation upon correction of the penalty or conviction for
the lesser offense. If the CA finds it proper to modify the sentence, and the penalty finally imposed by
the appellate court is within the probationable period, or the crime for which the accused is eventually
convicted imposes a probationable penalty, application for probation after the case is remanded to the
trial court for execution should be allowed.

It is believed that the recommended grounds for appeal do not contravene Section 4 of the Probation
Law, which expressly prohibits only an appeal from the judgment of conviction. In such instances, the
ultimate reason of the accused for filing the appeal based on the afore-stated grounds is to determine
whether he may avail of probation based on the review by the appellate court of the crime and/or
penalty imposed by the trial court. Allowing the afore-stated grounds for appeal would give an accused
the opportunity to apply for probation if his ground for appeal is found to be meritorious by the appellate
court, thus, serving the purpose of the Probation Law to promote the reformation of a penitent offender
outside of prison.

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On the other hand, probation should not be granted to the accused in the following instances:

1. When the accused is convicted by the trial court of a crime where the penalty imposed is within the
probationable period or a fine, and the accused files a notice of appeal; and

2. When the accused files a notice of appeal which puts the merits of his conviction in issue, even
if there is an alternative prayer for the correction of the penalty imposed by the trial court or for a
conviction to a lesser crime, which is necessarily included in the crime in which he was convicted
where the penalty is within the probationable period.

Both instances violate the spirit and letter of the law, as Section 4 of the Probation Law prohibits
granting an application for probation if an appeal from the sentence of conviction has been perfected
by the accused.

In this case, petitioner appealed the trial court’s judgment of conviction before the CA alleging that it
was error on the part of the RTC to have found him guilty of violating Section 5(b), Article III of R.A. No.
7610. He argued that the RTC should not have given much faith and credence to the testimony of the
victim because it was tainted with inconsistencies. Moreover, he went on to assert that even assuming
he committed the acts imputed on him, still there was no evidence showing that the lascivious acts
were committed without consent or through force, duress, intimidation or violence because the victim at
that time was in deep slumber. It is apparent that petitioner anchored his appeal on a claim of
innocence and/or lack of sufficient evidence to support his conviction of the offense charged, which is
clearly inconsistent with the tenor of the Probation Law that only qualified penitent offender are allowed
to apply for probation. The CA, therefore, did not err in applying the similar case of Lagrosa v.
People  wherein the protestations of petitioners therein did not simply assail the propriety of the
46

penalties imposed but meant a profession of guiltlessness, if not complete innocence.

To be sure, if petitioner intended in the first instance to be entitled to apply for probation he should
have admitted his guilt and buttressed his appeal on a claim that the penalty imposed by the RTC was
erroneous or that he is only guilty of a lesser offense necessarily included in the crime for which he
was originally convicted. Unfortunately for him, he already perfected his appeal and it is late in the day
to avail the benefits of probation despite the imposition of the CA of a probationable penalty.

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Pascua v. People, G.R. No. 250578, 07 September 2020

Facts:

In a Decision26 dated September 13, 2019, the CA affirmed the RTC ruling. The CA held that a
reasonable interpretation of A.M. No. 18-03-16-SC would lead to the conclusion that the Supreme
Court intended for drug trafficking and pushing (Section 5) to still be covered by the "no probation rule"
under Section 24, Article II of RA 9165.27 It rejected Pascua's contention that A.M. No. 18-03-16-SC
should apply to the lesser offense allowed instead of the offense actually charged. 28 The CA opined in
this wise: "[t]his interpretation will result to absurdity, since Section 5 is not among the enumerated
lesser offenses to which an accused can admit guilt to in lieu of being convicted of a higher offense. If
this was really the intention of the Supreme Court, it would not have included this provision since there
is no acceptable plea to which this exception to the general rule would be applicable. It is therefore
rational and logical to conclude that persons charged [with] violating Section 5 who subsequently avail
of plea bargaining may not apply for probation[,] x x x it would mean that every person accused of sale
of illegal drugs would simply have to plead guilty to the lesser offense of violation of Section 12, apply
for probation, then be released scot-free." 29 It likewise held that even assuming Pascua was eligible
for probation, the same is still within the discretion of the lower court.

Issue:
The sole issue for the Court's resolution is whether or not the CA correctly ruled that the RTC did not
gravely abuse its discretion in holding that Pascua is ineligible for probation in Criminal Case No.
18805 after pleading guilty to the lesser offense of violation of Section 12, Article II of RA 9165.

Ruling:

To recall, plea bargaining in cases involving drugs cases was recently allowed through the Court's
promulgation of Estipona, Jr. v. Lobrigo,35 which declared the provision in RA 9165 expressly
disallowing plea bargaining in drugs cases, i.e., Section 23,36 Article II, unconstitutional for
contravening the rule-making authority of the Supreme Court. Following this pronouncement, the Court
issued A.M. No. 18-03-16-SC providing for a plea bargaining framework in drugs cases, which was
required to be adopted by all trial courts handling drugs cases.37

In A.M. No. 18-03-16-SC, the Court enumerated, in table format, several violations of RA 9165 which
could be subject to plea-bargaining.38 Included therein is violation of Section 5, Article II thereof,
particularly for the sale, trading, etc. of shabu weighing less than 1.00 gram. The rationale for this
particular exception was explained by the Court in its Resolution dated April 2, 2019 in Re: Letter of
Associate Justice Diosdado M. Peralta on the Suggested Plea Bargaining Framework Submitted by the
Philippine Judges Association,39 to wit:

It bears emphasis that the main reason of the Court in stating in A.M. No. 18-03-16-SC dated April 10,
2018 that "plea bargaining is also not allowed under Section 5 (Sale, Trading, etc. of Dangerous
Drugs) involving all other kinds of dangerous drugs, except shabu and marijuana" lies in the diminutive
quantity of the dangerous drugs involved. Taking judicial notice of the volume and prevalence of cases
involving the said two (2) dangerous drugs, as well as the recommendations of the Officers of the
PJA, the Court is of the view that illegal sale of 0.01 gram to 0.99 gram of methamphetamine
hydrochloride (shabu) is very light enough to be considered as necessarily included in the offense of
violation of Section 12 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for
Dangerous Drugs), while 1.00 gram and above is substantial enough to disallow plea bargaining. The
Court holds the same view with respect to illegal sale of 0.01 gram to 9.99 grams of marijuana, which
likewise suffices to be deemed necessarily included in the same offense of violation of the same
Section 12 of R.A. No. 9165, while 10.00 grams and above is ample enough to disallow plea
bargaining. (Emphases and underscoring supplied) Ꮮαwρhi ৷

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A.M. No. 18-03-16-SC also provides, among others, in the "Remarks" column of the aforesaid offense
that "if accused applies for probation in offenses punishable under R.A. No. 9165, other than for illegal
drug trafficking or pushing under Section 5 in relation to [Section] 24 thereof, then the law on probation
apply."40 Notably, Section 24, Article II of RA 9165 provides that any person convicted for drug
trafficking or pushing under Section 5 of the law cannot avail of the benefits of the Probation Law, viz.:

Section 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. — Any person
convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court,
cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as
amended.

In this case, the CA construed the aforementioned remark in A.M. No. 18-03-16-SC as disqualifying
persons originally charged with violation of Section 5, Article II of RA 9165 but were convicted of the
lesser offense of violation of Section 12, Article II of the same law – such as Pascua – from applying for
probation.

However, the CA is mistaken as the said remark should be simply regarded as a recognition and
reminder of the general rule provided in Section 24 that "[a]ny person convicted for drug trafficking or
pushing under this Act"41 shall be ineligible for probation. Moreover, the CA's view is not supported
neither by the very wording of Section 24, Article II of RA 9165 nor the provisions of the Probation Law.
It likewise disregards the legal consequences of plea bargaining.

It bears stressing that it is only after the trial court arrives at a judgment of conviction can the provisions
of the Probation Law apply.  "Probation" is defined under Section 3 (a) thereof as "a disposition under
Ꮮαwρhi ৷

which a defendant, after conviction and sentence, is released subject to conditions imposed by the
court and to the supervision of a probation officer."42 Section 9 thereof, which lists the disqualified
offenders, also highlights that the disqualifications pertain to the nature of the convictions meted out to
the prospective applicant:

Section 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to those:

(a) sentenced to serve a maximum term of imprisonment of more than six (6) years;

(b) convicted of any crime against the national security;

(c) who have previously been convicted by final judgment of an offense punished by

imprisonment of more than six (6) months and one (1) day and/or a fine of not more than one
thousand pesos (P1,000.00);

(d) who have been once on probation under the provisions of this Decree; and

(e) who are already serving sentence at the time the substantive provisions of this Decree
became applicable pursuant to Section 33 hereof." (Emphases supplied)

It is clear from both Section 24, Article II of RA 9165 and the provisions of the Probation Law that 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 this regard, it is worth emphasizing that upon acceptance of a plea bargain, the accused is actually
found guilty of the lesser offense subject of the plea. According to jurisprudence, "[p]lea 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."43

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Thus, regardless of what the original charge was in the Information, the judgment would be for the
lesser offense to which the accused pled guilty. This means that the penalty to be meted out, as well
as all the attendant accessory penalties, and other consequences under the law, including eligibility for
probation and parole, would be based on such lesser offense. Necessarily, even if Pascua was
originally charged with violation of Section 5, Article II of RA 9165 in Criminal Case No. 18805, he was
ultimately convicted of the lower offense of violation of Section 12, Article II of the same law. Since the
foregoing effectively removed Pascua's case from the coverage of Section 24, Article II of RA 9165, he
should, at the very least, be allowed to apply for probation.

The foregoing notwithstanding, it is well to clarify that this ruling does not, per se make Pascua eligible
for probation. This ruling is limited to the deletion of the RTC's pronouncement that Pascua is
"ineligible to apply for probation", thereby allowing him to file such application. If he files for the same,
the grant or denial thereof will then lie in the sound discretion of the RTC after due consideration of the
criteria laid down in the Probation Law, e.g., Section 844 thereof.

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