06-criminal-law-suggested-answers-2019_bri127.pdf

Training & Convention Division University of the Philippines Law Center SUGGESTED ANSWERS TO THE 2019 BAR EXAMINATIONS IN CRIMINAL LAW

PART I

A.1. Define/distinguish the following terms: (a) Mala in se and mala prohibita (2%)

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SUGGESTED ANSWER: When the acts complained of are inherently immoral, they are deemed mala in se, even if they are punished by a special law. Accordingly, criminal intent must be clearly established with the other elements of the crime; otherwise, no crime is committed. On the other hand, in crimes that are mala prohibita, the criminal acts are not inherently immoral but become punishable only because the law says that they are forbidden [Garcia v. CA, G.R. No. 157171, March 14, 2006]. (b) Grave, less grave, and light felonies (3%)

SUGGESTED ANSWER: Under Art. 9 of the Revised Penal Code (RPC), grave felonies are those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with Art. 25 of the same Code. Less grave felonies are those which the law punishes with penalties which in their maximum period are correccional, also in accordance with Art. 25. Light felonies are those infractions of law for the commission of which a penalty of arresto menor or a fine not exceeding P40,000 or both is provided (As amended by RA 10951). (c) Aberratio ictus, error in personae, and praeter intentionem (3%) SUGGESTED ANSWER: Under Art. 4, par. 1 of the RPC, criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended. Thus, a person committing UP LAW TRAINING AND CONVENTION DIVISION | BRIGTDEJESUS2020 | Page 1 of 19

a felony is still criminally liable even if: a) there is a mistake in the identity of the victim or error in personae; b) there is a mistake in the blow or aberratio ictus; and c) the injurious result is greater than that intended or praeter intentionem. A.2. Mr. X has always been infatuated with Ms. Y. Scorned by Ms. Y's disregard for his feelings towards her, Mr. X came up with a plan to abduct Ms. Y in order to have carnal knowledge of her with the help of his buddies, A, B, and C.

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On the day they decided to carry out the plan, and while surreptitiously waiting for Ms. Y, C had a change of heart and left. This notwithstanding, Mr. X, A, and B continued with the plan and abducted Ms. Y by forcefully taking her to a deserted house away from the city. There, Mr. X restrained Ms. V's arms, while A held her legs apart. B stood as a lookout. Mr. X was then able to have carnal knowledge of Ms. Y, who was resisting throughout the entire ordeal. Consequently, Mr. X was charged with the crime of Forcible Abduction under the Revised Penal Code. (a) Is the charge against Mr. X proper? Explain. (3%)

SUGGESTED ANSWER: No, the charge against Mr. C is not proper. Mr. X should be charged with the crime of Rape. Based on the facts, the main objective of Mr. X was to have carnal knowledge of Ms. Y. The crime of Forcible Abduction is absorbed in the crime of rape if the real objective of the accused was to rape the victim [People v. Cayanan, G.R. No. 200080, Sept. 18, 2013]. (b) Assuming that A, B, and C are also charged, may they be held criminally liable together with Mr. X? Explain. (2%) SUGGESTED ANSWER: No. Only A and B may be held criminally liable together with Mr. X. Under Art. 8, par. 1 of the RPC, a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. With A holding Ms. Y’s legs apart and B standing as a lookout, they actively participated in the commission of the crime and are guilty as co-conspirators. [People v. Tumalip, G.R. No. L-28451, October 28, 1974] C may not be held criminally liable. C dissociated himself from the conspiracy when he had a change of heart and left. His disavowal of the

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conspiracy was effective since he decided not to perform his part in the conspiracy before any material act of execution leading to the Rape was committed. Mere knowledge, acquiescence, or approval of the act without cooperation is not enough to constitute one as a party to a conspiracy [Taer v. CA, G.R. No. 85204, June 18, 1990]. A.3.

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Mr. O, a 75-year old retiree who has been a widower for the last ten (10) years, believed that, at past 70, he is licensed to engage in voyeurism to satisfy his lustful desires. If not peeping into his neighbors' rooms through his powerful single-cylinder telescope, he would trail young, shapely girls along the hallways and corridors of shopping malls. While going up the escalator, he stayed a step behind a mini-skirted, 20-year old girl, and, in the heat of the moment, put his hand on her left buttock and massaged it. The girl screamed and hollered for help. Mr. O was thus apprehended and charged with Acts of Lasciviousness under Article 336 of the Revised Penal Code. Mr. O's counsel, however, claimed that Mr. 0 should only be charged with the crime of Unjust Vexation. Is the contention of Mr. O's counsel tenable? Explain. (2.5%)

SUGGESTED ANSWER: No, the contention of Mr. O’s counsel is un tenable. Under Article 366 of the RPC, the elements of Acts of Lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that the lascivious act is committed against a person of either sex; and (3) that it is done under any of the following circumstances: (a) by using force or intimidation; (b) when the offended party is deprived of reason or otherwise unconscious; (c) by means of fradulent machination or grave abuse of authority; or (d) when the offended party is under 12 years of age or is demented. Lascivious conduct is defined as “the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttock, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse , humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person”. [Orsos v. People, G.R. No. 214673, November 20, 2017] Here, when Mr. O touched the buttocks of the offended party, he was animated with lewdness; thus acts of lasciviousness was committed. A.4. In dire need of money, Mr. R decided to steal from his next-door neighbor, Mrs. V. On the night of May 15,2010, Mr. R proceeded with his plan and entered Mrs. V's bedroom by breaking one of the windows from UP LAW TRAINING AND CONVENTION DIVISION | BRIGTDEJESUS2020 | Page 3 of 19

the outside. Finding Mrs. V sound asleep, he silently foraged through her cabinet, and stashed all the bundles of cash and jewelries he could find. As Mr. R was about to leave, he heard Mrs. V shout, "Stop or I will shoot you!", and when he turned around, he saw Mrs. V cocking a rifle which was pointed at him. Fearing for his life, Mr. R then lunged at Mrs. V and was able to wrest the gun away from her. Thereafter, Mr. R shot Mrs. V, which resulted in her death. Mr. R's deeds were discovered on the very same night as he was seen by law enforcement authorities fleeing the crime scene. (a) What crime/s did Mr. R commit under the Revised Penal Code? Explain. (2.5%) SUGGESTED ANSWER:

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Mr. R committed Robbery with Homicide under Art. 293, in relation to Art. 294, par. 1 of the RPC. The elements of the crime are: a) the taking of personal property with the use of violence or intimidation against the person; b) the property taken belongs to another; c) the taking is characterized by intent to gain or animus lucrandi; and d) on the occasion or by reason of the robbery, the crime of homicide, as used it is generic sense, was committed. It must be established that the original criminal design of the malefactor is to commit robbery and the killing is merely incidental thereto. Here, Mr. R’s intent to commit robbery preceded the taking of Mrs. V’s life. The killing took place on the occasion or by reason of the robbery. (b) Based on your answer in question (a), within what period should the prosecution file the criminal charge against Mr. R in order to avoid prescription? Explain. (2%)

SUGGESTED ANSWER: The prosecution should file the criminal charge within 20 years from the date of discovery. Under Art. 90 of the RPC, crimes punishable by reclusion perpetua shall prescribe in 20 years. Here, the crime of Robbery with Homicide is punished by reclusion perpetua. Thus, the crime shall prescribe in 20 years. (c) May Mr. R validly invoke the justifying circumstance of selfdefense? Explain. (2.5%) SUGGESTED ANSWER: No, Mr. R may not invoke the justifying circumstance of selfdefense. There was no unlawful aggression on the part of Mrs. V, who was defending her property. As the owner of the cash and jewelry, Mrs. V had

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the lawful right to take back the goods stolen by Mr. R who was actually the unlawful aggressor. (People v. Salamuddin, 52 Phil. 670) A.5. In August 2018, B entered into a contract with S for the purchase of the latter's second-hand car in the amount of P400,000.00, payable in two (2) equal monthly installments. Simultaneous with the signing of the contract and S' s turnover of the car keys, B executed, issued, and delivered two (2) post-dated checks, all payable to S, with the assurance that they will all be honored on their respective maturity dates.

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However, all two (2) checks were dishonored for being drawn against insufficient funds. Consequently, notices there for were duly issued to and received by B, but this notwithstanding, no payment arrangements were made by him. Further, upon S's investigation, it was uncovered that B's checking account had only P50,000.00 when it was opened in June 2018 and no further deposits were made after that. S also found out that B knew fully well of such circumstances at the time he issued the two (2) checks. What crime/s should B be charged with and for how many counts? Explain. (5%) SUGGESTED ANSWER: B should be charged with 1 count of Estafa and 2 counts of violation of B.P. 22. Under Art. 315, par. 2(d) of the RPC, estafa by postdating a check or issuing a check in payment of an obligation is committed when: (a) the offender post-dated a check, or issued a check in payment of an obligation; and (b) such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. Here, B’s act of postdating checks in payment of an obligation was the efficient cause of the defraudation. Postdating the checks was committed prior to or simultaneously with the commission of the fraud. B should also be charged with 2 counts of violation of B.P. 22 or the Bouncing Checks Law. B.P. 22 may be violated by making or drawing and issuing any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check, which check is subsequently dishonored for insufficiency of funds or credit, or would have been dishonoured for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. Here, all the elements of the offense are present. B issued 2 checks which was subsequently dishonored by the drawee bank for insufficiency of funds. The gravamen of B.P. 22 is the issuance of the check, thus, the issuance of each bouncing check constitutes as one count of the offense. UP LAW TRAINING AND CONVENTION DIVISION | BRIGTDEJESUS2020 | Page 5 of 19

While a BP 22 case and an estafa case may be rooted from an identical set of facts, they nevertheless present different causes of action, which, under the law, are considered "separate, distinct, and independent" from each other. [Rimando v. Aldaba, G.R. No. 203583, October 13, 2014] A.6. Mr. A has a long-standing feud with Mr. B. As payback for Mr. B's numerous transgressions against him, Mr. A planned to bum down Mr. B's rest house. One night, Mr. A went to the rest house and started pouring gasoline on its walls. However, just as Mr. A had lit the match for burning, he was discovered by Mr. B' s caretaker, Ms. C, and was consequently prevented from setting the rest house on fire. Mr. A was then charged with Frustrated Arson.

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(a) Is the charge of Frustrated Arson proper? Explain. (2%) SUGGESTED ANSWER: No, the proper charge is Attempted Arson. Under Art. 6 of the RPC, there is an attempt when the offender commences the commission of a felony directly by overt acts and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Here, Mr. A commenced the commission of arson by pouring gasoline on the house and lighting a match. However, he did not perform all the acts of execution which includes setting the rest house on fire. Thus, Mr. A should only be liable for Attempted Arson. (b) Assuming that Mr. A successfully burned down Mr. B's rest house, and as a result, Ms. C was trapped therein and was subsequently killed in the fire, what crime/s did Mr. A commit? Explain. (3%) SUGGESTED ANSWER: In cases where both burning and death occur, in order to determine what crime was committed, there is a need to ascertain the main objective of the malefactor: (a) if the main objective is the burning of the building or edifice but death results by reason or on occasion of arson, the crime is simply arson, and the resulting homicide is absorbed; (b) if the main objective is to kill a particular person who may be in the building or edifice, when fire is resorted to as a means to accomplish such goal, the crime committed is murder only; and (3) if the objective is to kill a particular person, and in fact the offender has already done so, but the fire is resorted to as a means to cover up the killing, then there are two separate and distinct crimes committed- homicide/murder and arson. [People v. UP LAW TRAINING AND CONVENTION DIVISION | BRIGTDEJESUS2020 | Page 6 of 19

Sota and Gadjadli, G.R. No. 203121, November 29, 2017] Here the main purpose was to burn the house and the death of Mr. C was only incidental, hence, arson was committed and the homicide is absorbed. A.7. Mr. L is a newspaper reporter who writes about news items concerning the judiciary. Mr. L believed that members of the judiciary can be criticized and exposed for the prohibited acts that they commit by virtue of the public nature of their offices. Upon receiving numerous complaints from private citizens, Mr. L released a scathing newspaper expose involving Judge G and his alleged acts constituting graft and corruption. Consequently, Mr. L was charged with the crime of Libel.

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In response, Mr. L contended that truth is a valid defense in Libel and in this relation, claimed that he was only exposing the truth regarding Judge G's misdeeds. Further, Mr. L contended that in any event, his expose on Judge G is based on the complaints he received from private citizens, and as such, should be deemed as a mere fair commentary on a matter of public interest. (a) Are the contentions of Mr. L tenable? Explain. (3%)

SUGGESTED ANSWER: Mr. L’s contention that truth is a valid defense in libel is tenable. Under Art. 361 of the RPC, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions, and the truth of the allegations is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends (Lopez v. People, G.R. No. 172203, February 14, 2011). (b) What is the effect on the criminal liability of an accused if he or she publishes a libelous article on an online news platform? Explain. (2%) SUGGESTED ANSWER: The accused may be liable under RA 10175, or the Cybercrime Prevention Act of 2012. Under Sec. 4(c)(4), a cybercrime offense includes the unlawful or prohibited acts of libel as defined in Art. 355 of the RPC committed through a computer system or any other similar means which may be devised in the future. Thus, RA 10175 penalizes the publication of a libelous article on an online news platform, and the penalty to be imposed shall be one (1) degree higher than that provided under the RPC, pursuant to Section 6 thereof.

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A.8. After a successful entrapment operation by the Philippine Drug Enforcement Agency, Mr. D, a known drug pusher, was arrested on January 15,2019 for having been caught in flagrante delicto selling a pack of shabu, a prohibited drug, to the poseur-buyer. Consequently, Mr. D was frisked by the arresting officer, and aluminum foils, plastic lighters, and another plastic sachet of shabu were obtained from him. The items were marked immediately upon confiscation, and they were likewise inventoried and photographed at the place of arrest. Throughout the process, a media representative was able to witness the conduct of the marking, inventory, and photography of the seized items in the presence of Mr. D.

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Mr. D was then charged with the crimes of Illegal Sale and Illegal Possession of Dangerous Drugs. In defense, he lamented that the chain of custody procedure under Section 21, Article II of the Comprehensive Dangerous Drugs Act of 2002, as amended, was not followed because only a media representative was present. In response, the prosecution maintained that the said media representative was a very credible reporter and as such, the presence of any other witness was unnecessary. (a) Was the chain of custody procedure validly complied with in this case? If not, was the deviation from such procedure justified? Explain. (3%)

SUGGESTED ANSWER: No, the chain of custody was not validly complied with. Under Sec. 21 of RA 9165, as amended by RA 10640, the presence of at least two insulating witnesses are required: (1) an elected public official, and (2) a representative from the media, or a representative from the National Prosecution Service. Here, only a media representative was present to witness the conduct of marking, inventory and photography. Further, the credibility of the media reporter as the lone witness in a buy-bust operation is neither a plausible explanation nor an unacceptable justification for the PDEA’s non-compliance with the chain of custody rule. The Supreme Court listed the following acceptable justifications in case of the absence of witnesses: (1) their attendance was impossible because the place of arrest was a remote area; (2) their safety was threatened by an immediate retaliatory action of the accused; and (3) earnest efforts to secure the presence of the witnesses within the period required under Art. 125 of the RPC prove futile through no fault of the arresting officers [People v. Sipin, as cited in People v. Lim, G.R. 231989, September 04, 2018]. (b) What is the consequence of an unjustified deviation from the chain of custody rule to the criminal case against Mr. D? Explain. (2%)

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SUGGESTED ANSWER: The unjustified deviation from the chain of custody rule would lead to Mr. D’s acquittal. Well settled is the rule that the procedure under Sec. 21 is a matter of substantive law and cannot be brushed aside as a simple procedural technicality [People v. Año, G.R. No. 230070, March 14, 2018]. A.9.

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X and Y approached Mayor Z and requested him to solemnize their marriage. On the day of the ceremony, X and Y proceeded to Mayor Z's office but he was not there. Mayor Z's chief of staff, Mr. U, however, represented that he himself can solemnize their marriage and just have Mayor Z sign the marriage certificate when the latter comes back. Consequently, upon X and V's assent, Mr. U solemnized the marriage, despite his lack of authority therefor. (a) What crime may Mr. U be charged with under the Revised Penal Code (RPC)? Explain. (2.5%)

SUGGESTED ANSWER: Mr. U can be charged with the crime of Usurpation of Authority or Official Functions. Under Art. 177 of the RPC, Usurpation of Authority may be committed by performing any act pertaining to any person in authority or public officer of the Philippine Government or of a foreign government or any agency thereof, under the pretense of official position, and without being lawfully entitled to do so. Here, despite his lack of authority, Mr. U knowingly solemnized a marriage pertaining to Mayor Z. (b) Assuming that Mayor Z signed the marriage certificate which stated that he solemnized the marriage of X and Y, what crime may Mayor Z be charged with under the RPC? Explain. (2.5%)

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SUGGESTED ANSWER: Mayor Z may be charged with Falsification under Art. 171, par. 2 of the RPC. Its elements are: (1) that the offender is a public officer; (2) that the takes advantage of his official position; and (3) that he falsifies a document by causing it to appear that persons have participated in any act of proceeding when they did not in fact so participate. Here, all the elements of the crime are present. Mayor Z signed the marriage certificate which states that he solemnized the marriage of X and Y when in fact, he did not participate in its solemnization. A.10. Distinguish Rebellion under the Revised Penal Code and Terrorism under the Human Security Act of 2007. (2.5%) SUGGESTED ANSWER:

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Under Art. 134 of the RPC, rebellion is, by nature, a crime of the masses or of a multitude; it is a vast movement of men and a complex net of intrigues and plots (People v. Almazan, CA, 37 O.G. 1932). Its elements are: 1) that there be a public uprising and taking arms against the government; and 2) that the purpose of the uprising or movement is either to: a) remove from the allegiance to said government or its laws the territory of the Philippines or any part thereof, or any body of land, naval, or other armed forces, or b) deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives. Under RA 9372, or the Human Security Act of 2007, rebellion may be subsumed in the crime of terrorism; it is one of the means by which terrorism can be committed. Sec. 3 states that a person who commits an act punishable as rebellion, thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism. END OF PART I

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PART II

B.11. Ms. M, a Malaysian visiting the Philippines, was about to depart for Hong Kong via an Indonesian-registered commercial vessel. While on board the vessel, which was still docked at the port of Manila, she saw her mortal enemy, Ms. A, an Australian citizen. Ms. A was seated at the front portion of the cabin and was busy using her laptop, with no idea whatsoever that Ms. M was likewise onboard the ship.

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Consumed by her anger towards Ms. A, Ms. M stealthily approached the Australian from behind, and then quickly stabbed her neck with a pocketknife, resulting in Ms. A's immediate death. Operatives from the Philippine National Police - Maritime Command arrested Ms. M for the killing of Ms. A and thereafter, intended to charge her under the Revised Penal Code (RPC). Ms. M contended that the provisions of the RPC cannot be applied and enforced against her because both she and the victim are not Filipino nationals, and besides, the alleged crime was committed in an Indonesian-registered vessel. (a) Is Ms. M's contention against the application of the RPC against her tenable? Explain. (3%)

SUGGESTED ANSWER: No, the RPC can be applied and enforced against Ms. M although both the offender and the offended party are foreign nationals and the crime was committed onboard a foreign vessel. Based on the territorial principle, the English rule adopted in the Philippines, crimes perpetrated aboard foreign vessels are generally triable in the courts of the country within the territory in which they were committed. [People v. Wong Chen, G.R. No. L-18924, October 19, 1922] Moreover, under the Principle of Generality, the penal laws of the Philippines apply to all who live or sojourn in the country regardless of their citizenship. The fact that the vessel was registered in Indonesia is likewise irrelevant. Thus, the killing committed by Ms. M while onboard an Indonesian-registered vessel that is docked at the port of Manila is triable within the jurisdiction of the Philippines. (b) Assuming that the provisions of the RPC can be applied against Ms. M, what crime under the RPC should she be charged with? Explain. (2%)

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SUGGESTED ANSWER: Ms. M should be charged with the crime of Homicide under the RPC. Article 249 of the RPC punishes any person who shall kill another without the attendance of any of the qualifying circumstances mentioned in Art. 248, including treachery. The suddenness of the attack does not by itself, suffice to support a finding of alevosia, even if the purpose was to kill, so long as the decision was made all of a sudden and the victim’s helpless position was accidental [People v. Lubreo, 200SCRA11]. In a number of cases, the Court held that treachery cannot be appreciated simply because the attack was sudden and unexpected [People v. Vilbar]. ALTERNATIVE ANSWER:

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Ms. M should be charged with Murder. She killed Ms. A by stealthily approaching the latter from behind and stabbing the latter’s neck ith a pocketknife. Ms. M therefore employed means and methods which tend directly and specially to insure the execution of the planned killing, without risk to herself arising from the defense which Ms. A might make. Hence, there was treachery on Ms. M’s part, and treachery qualifies an act of killing to Murder. B.12.

In November 2018, Mr. N, a notorious criminal, was found guilty of three (3) counts of Murder and was consequently sentenced with the penalty of reclusion perpetua for each count. A month after, he was likewise found guilty of five (5) counts of Grave Threats in a separate criminal proceeding, and hence, meted with the penalty of prision mayor for each count. (a) What are the respective durations of the penalties of reclusion perpetua and prision mayor? (3%) SUGGESTED ANSWER: Under Art. 27 of the RPC, the penalty of reclusion perpetua shall be from 20 years and 1 day to 40 years; while the duration of the penalty of prision mayor shall be from 6 years and 1 day to 12 years. (b) How long will Mr. N serve all his penalties of imprisonment? Explain. (2.5%)

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SUGGESTED ANSWER: Mr. N will serve all this penalties of imprisonment for a total of 40 years. Under Art. 70 of the RPC, when the culprit has to serve two or more penalties, he shall serve then simultaneously if the nature of the penalties will so permit. However, the maximum duration of the convict’s sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period. Such maximum period shall in no case exceed 40 years. (c) May Mr. N avail of the benefits of the Indeterminate Sentence Law with respect to his convictions for Murder and Grave Threats? Explain. (3%) SUGGESTED ANSWER:

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As to the crime of Murder, Mr. N cannot avail of the benefits of the Intermediate Sentence Law (ISLAW). Reclusion perpetua is a single indivisible penalty, with no minimum or maximum periods. Hence, the ISLAW cannot be properly applied and a straight penalty of reclusion perpetua should be imposed. However, ISLAW can be applied to the 5 counts of Grave Threats, so long as the penalty imposed for each count does not exceed 6 years. (d)Is Mr. N considered a habitual delinquent? Explain. (2.5%)

SUGGESTED ANSWER: No, Mr. N is not a habitual delinquent. Under Art. 62 of the RPC, a person shall be deemed to be a habitual delinquent, if within the period of 10 years from the date of his last release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa, or falsification, he is found guilty of any of the said crimes a third time or oftener. Here, Mr. N did not commit the specific crimes above mentioned. B.13. Mr. Q was found guilty beyond reasonable doubt of the crime of Serious Physical Injuries, and accordingly, was sentenced to suffer the penalty of imprisonment for an indeterminate period of six (6) months of arresto mayor, as minimum, to four (4) years, two (2) months, and one (1) day of prision correccional, as maximum. He was also ordered to pay the victim actual damages in the amount of'P50,000.00, with subsidiary imprisonment in case of insolvency. Was the imposition of subsidiary imprisonment proper? Explain. (3%)

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SUGGESTED ANSWER: No, subsidiary imprisonment does not apply to civil liability but only for non-payment of fine. Here, there is no penalty of fine imposed by the trial court. B.14.

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Mr. X and Mr. Y engaged in a violent fistfight which Mr. X instigated. This culminated in Mr. X repeatedly smashing Mr. Y's head on the concrete pavement. Thereafter, Mr. X left Mr. Y barely breathing and almost dead. A few minutes after the incident, Mr. X immediately went to the police station to confess what he did and told the police where he left Mr. Y. Fortunately, the police rescued Mr. Y and he survived with the help of timely medical intervention. Mr. X was then charged in court with Frustrated Homicide, to which he openly confessed his guilt upon arraignment. (a) Based on the above-stated facts, what is/are the mitigating circumstance/s that may be appreciated in favor of Mr. X. Explain. (2%)

SUGGESTED ANSWER: The mitigating circumstances of Voluntary Surrender and Voluntary Confession of Guilt can be appreciated in Mr. X’s favor. Mr. X voluntarily and immediately went to the police station after his altercation with Mr. Y. He acknowledged his wrongdoing and saved the authorities’ time and investigative resources [People v. Gervacio, G.R. No. 107328 September 26, 1994]. This satisfies the requirements for Voluntary Surrender. Mr. X likewise voluntarily pleaded “Guilty” in open court during his arraignment. This satisfies the requirements for a Voluntary Confession of Guilt, (a) that the offender spontaneously confessed his guilt; (2) that the confession of guilt was made in open court, or before the competent court that is to try the case; and (3) that the confession of guilt was made prior to the presentation for the prosecution [People v. Bueza, G.R. No. 79619, August 20, 1990]. (b) Under the Revised Penal Code, Homicide is punished with the penalty of reclusion temporal. Without applying the Indeterminate Sentence Law, what penalty should be imposed against Mr. X assuming that he is found guilty of the charge of Frustrated Homicide, and that the presence of two (2) ordinary mitigating circumstances have been duly alleged and proven? Explain. (3%) SUGGESTED ANSWER:

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Conformably with Art. 50 of the RPC, Frustrated Homicide is punished with prision mayor, which is the penalty next lower in degree than that prescribed by law for the consummated felony. Assuming that two ordinary mitigating circumstances were duly alleged and proven, the proper penalty should be prision correccional in its medium period. Under Art. 64, par. 5, where 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, in the period that it may deem applicable, according to the number and nature of such circumstances. B.15.

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In June 2017, Mr. P was criminally charged with Qualified Theft under the Revised Penal Code. After due proceedings, the Regional Trial Court found him guilty beyond reasonable doubt, and accordingly, sentenced him to suffer the penalty of imprisonment for an indeterminate period of six (6) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and one (1) day, of reclusion temporal, as maximum. Thereafter, Mr. P applied for probation. (a) May Mr. P be extended the benefits of the Probation Law? Explain. (3%)

SUGGESTED ANSWER: No, Mr. P may not be extended the benefits of Probation Law because he is a disqualified offender. Under Section 9 of PD 968, as amended by RA 10707, the benefits of probation shall not be extended to those sentenced to serve a maximum term of imprisonment of more than 6 years. (b) In what instance may an accused who appeals a judgment of conviction still apply for probation? Explain. (3%) SUGGESTED ANSWER: Under Section 4 of PD 968, as amended by RA 10707, no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. However, 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. B.16.

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Ms. E was charged with the complex crime of Estafa through Falsification of Public Documents before the trial court. Prior to her arraignment, Ms. E moved for the dismissal of the criminal case against her, pointing out that the private offended party is her biological father, and that such relationship is an absolutory cause under Article 332 of the Revised Penal Code (RPC). (a) Explain the concept of complex crimes under the RPC. (2%) SUGGESTED ANSWER: There are two kinds of complex crimes under Art. 48 of the RPC. The first one is a compound crime, when a single act constitutes two or more grave or less grave felonies. The second one is a complex crime proper when an offense is a necessary means for committing the other. (b) Is Ms. E's contention correct? Explain. (3%)

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SUGGESTED ANSWER: No, Ms. E’s contention is incorrect. While Art. 332 of the RPC provides an absolutory cause for the crimes of theft, swindling or estafa, and malicious mischief against defendants, the exemption does not apply to complex crimes. B.17.

One Sunday afternoon, Mr. X, President of ABC Corp., happened to bump into the Labor Arbiter assigned to the illegal dismissal case filed by certain employees against his company. During their encounter, Mr. X promised the Labor Arbiter a luxury car in exchange for a favorable ruling. The Labor Arbiter immediately rejected the offer and walked away. (a) What crime did Mr. X commit under the Revised Penal Code (RPC), if any? Explain. (2.5%) SUGGESTED ANSWER: Mr. X committed the crime of Attempted Corruption of a Public Official. He offered to give the Labor Arbiter a luxury car in exchange for a favorable ruling on a pending illegal dismissal case. By making such offer, Mr. X already commenced the performance of material acts of execution in corrupting the Labor Arbiter. He was not able to perform all the material acts of execution only because the Labor Arbiter refused to accept the offer [Pozar v. CA, G.R. No. L-62439, October 23, 1984]. ALTERNATIVE ANSWER:

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Mr. X committed no crime. Because there was no acceptance, there is no crime, and therefore, no penalty should be imposed. Nullum crimen nulla poena sine lege. There is no crime where there is no law punishing it. (b) Assuming that Mr. X's offer was instead accepted, should the Labor Arbiter be held liable for any crime under the RPC? If so, for what crime? May the Labor Arbiter also be held liable for violation of the Anti-Graft and Corrupt Practices Act? Explain. (5%) SUGGESTED ANSWER: The Labor Arbiter should be held liable for Direct Bribery. Under Art. 210 of the RPC, public officer commits direct bribery by accepting a gift in consideration of the execution of an act which does not constitute a crime, in connection with the performance of his official duties. By accepting Mr. X’s offer of a luxury car, the Labor Arbiter agreed to render a ruling in Mr. X’s favor.

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The Labor Arbiter may also be held liable for violation of RA 3019, or the Anti-Graft and Corrupt Practices Act. Under Sec. 3(e), it is considered a corrupt practice of any public officer to cause any undue injury to any party, including the Government, or give any private party unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality when evident bad faith, or gross inexcusable negligence. There is manifest partiality when there is a clear, notorious or plain inclination or predilection to favor one side or person rather than another [Fuentes v. People, G.R. No. 186421, April 17, 2017]. Here, the Labor Arbiter committed manifest partiality in favor of Mr. X. B.18. A typhoon destroyed the houses of many of the inhabitants of Municipality M. Accordingly, the local government passed an appropriation in the amount of Pl,000,000.00 to implement a Calamity Assistance Program for the typhoon victims, and the funds therefor were eventually earmarked for the purpose. Upon the orders, however, of Mayor T of Municipality M, these funds were disbursed for the reconstruction of the municipal hall which was substantially damaged by the typhoon. According to Mayor T, the reconstruction of the municipal hall was a more pressing concern than the relief program because the vital functions of the local government would be impeded if the said structure would not be immediately fixed. What crime did Mayor T commit under the Revised Penal Code? Explain. (2%) SUGGESTED ANSWER:

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Mayor T committed the crime of Technical Malversation under Article 220 of the RPC. In this crime, public fund or property is considered appropriated if it had been earmarked by law or ordinance for a specific expenditure [Dela Cuesta v. Sandiganbayan, G.R. Nos. 164068-69, November 19, 2013]. The law punishes the act of diverting public property earmarked for a particular public purpose to another public purpose [Ysidro v. People, G.R. No. 192330, November 14, 2012]. B.19.

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Ms. L, dean of a duly recognized private school, caught K, one of her students, vandalizing one of the school's properties. Ms. L called K's attention and proceeded to scold him, causing a crowd to gather around them. Embarrassed with the situation, K attacked Ms. L by repeatedly punching her on the face. Just as K was about to strike Ms. L again, J, another student, intervened. K then turned his anger on J and also hit him repeatedly, causing him physical injuries. What crime/s did K commit under the Revised Penal Code for his acts against Ms. L and J? Explain. (3%)

SUGGESTED ANSWER: K committed two counts of Direct Assault. The elements of direct assault under Art. 148 of the RPC are: 1) that the offender makes an attack, employs force, makes a serious intimidation or makes a serious resistance; 2) that the person assaulted is a person in authority or his agent; 3) that at the time of the assault, the person in authority or his agent is engaged in the actual performance of official duties, or that he is assaulted by reason of the past performance of official duties; 4) that the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties; and 5) that there is no public uprising. Art. 152 further provides that teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges, and universities in the actual performance of their professional duties or on the occasion of such performance shall be deemed persons in authority. Here, all the elements of direct assault are present, where K repeatedly punched Ms. L, a person in authority engaged in the performance of her official duties. K also committed Direct Assault against J. Art. 152 states that any person who comes to the aid of persons in authority shall be deemed an agent of a person in authority. Here, while K was attacking Ms. L, K also hit J, an agent of a person in authority who came to the aid of a person in authority [Gelig v. People, G.R. No. 173150, July 28, 2010]. B.20.

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Mr. S, a businessman and information technology practitioner, claimed to have devised an innovative business model. He would diligently compile a list of known personalities and entities in the fields of entertainment, arts, culture, and sports, and acquire numerous domain names in the internet using the names of these known personalities and entities for the purpose of selling these registered domain names to said personalities and entities in the future. Does Mr. S's "innovative business model" expose him to any criminal liability under the Cybercrime Prevention Act of 2012? If so, for what crime? Explain. (2.5%) SUGGESTED ANSWER:

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Yes. Mr. S’s “business model” exposes him to liability for Cyber Squatting under Section 4(a)(6) of the Cybercrime Prevention Act of 2012. Cyber Squatting is the acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is: (i) similar, identical or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration; (ii) identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and (iii) acquired without right or with intellectual property interests in it. -END OF PART II

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